Skip to content


Haji Abdullah Sait Vs. K. Sanjeevi Rao and 8 ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1979)2MLJ413
AppellantHaji Abdullah Sait
RespondentK. Sanjeevi Rao and 8 ors.
Cases ReferredMoti Ram v. Suraj Bhan and Ors.
Excerpt:
- securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along with sub-section (12) of section 19 of recovery of debts due to bank is and financial institutions act, it would be clear that the tribunal also has.....ismail, j.1. these two appeals arise out of the judgment and decree of this court on fee original side, namely, in c.s. no. 218 of 1965. the former appeal has been preferred by the plaintiff, while the latter appeal has been filed by the third defendant in the suit. since both sides have preferred appeals, for the sake of convenience, we refer to the parties as they have been arrayed in the suit. admittedly the suit property belongs to the plaintiff. equally admittedly the property was leased to one late seetharama rao under exhibit p-1 dated 8th july, 1940 and the lease expired on 15th july, 1943, but late seetharama rao continued to be in possession as a tenant holding over. this was obviously because the rent control orders and the legislations that were in force in this state gave.....
Judgment:

Ismail, J.

1. These two appeals arise out of the judgment and decree of this Court on fee original side, namely, in C.S. No. 218 of 1965. The former appeal has been preferred by the plaintiff, while the latter appeal has been filed by the third defendant in the suit. Since both sides have preferred appeals, for the sake of convenience, we refer to the parties as they have been arrayed in the suit. Admittedly the suit property belongs to the plaintiff. Equally admittedly the property was leased to one late Seetharama Rao under Exhibit P-1 dated 8th July, 1940 and the lease expired on 15th July, 1943, but late Seetharama Rao continued to be in possession as a tenant holding over. This was obviously because the Rent Control Orders and the legislations that were in force in this State gave protection to such persons from eviction. The legislation regarding control of rents started during the second world war. In the then Presidency of Madras the first two orders under the Defence of India Rules were issued as the Madras House Rent Control Order, 1941 and the Madras Godown Rent Control Order, 1942. In 1945 these orders were re-issued with slight changes, as the Tamil Nadu House Rent Control Order, 1945 and the Tamil Nadu Non-residential Buildings Rent Control Order, 1945. They were replaced by the Tamil Nadu Buildings (Lease and Rent Control) Act, 1946 which in turn was replaced by the Tamil Nadu Buildings (Lease and Rent Control) Act, 1949. That Act also was replaced by the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Tamil Nadu Act XVIII of 1960, hereinafter referred to as the Act, which came into force on 30th September, 1960, and which is the Act now in force. The Act contained certain exemptions in Section 30, according to which the Act did not apply to:

(i) any building the construction of which was, after the date of the commencement of this Act, completed and notified to the local authority concerned, or

(ii) any residential building the rental value of which, on the date of the commencement of this Act, as entered in the property tax assessment book of the municipal council district board, panchayat or panchayat union council or the corporation of Madras as the case may be, exceeds two hundred and fifty rupees per mensem, or

(iii) any non-residential building the rental value of which, on the date of the commencement of this Act, as entered in the property tax assessment book of the municipal council, district board, panchayat or panchayat union council or the corporation of Madras, as the case may be, exceeds four hundred rupees per mensem.

Admittedly by virtue of the provision contained in this section in relation to non-residential building, the Act did not apply to the suit building, since the rent for the building In question was Rs. 1,680. Section 30 of the Act was amended by the Tamil Nadu Act II of 1962, with regard to residential buildings. This amending Act replaced the original provision referred to above by the following:

any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds two hundred and fifty rupees.

With regard to non-residential buildings, the provision contained in the original Section 30 was replaced by the following provision:

any non-residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees.

Even after the above amendment, the Act was inapplicable to the suit building. It is in this context that the plaintiff issued a notice marked as Exhibit P-2 in these proceedings on 20th January, 1964 terminating the tenancy of late Seetharama Rao with effect from the end of 29th February, 1964. This notice through lawyer informed late Seetharama Rao:

You are put on notice that as and from the 1st March, 1964 the relationship between my client and you as landlord and tenant shall cease and determine and your occupation in spite of this notice will be at your peril.

Please take notice that if vacant possession is not delivered even after the expiry of the time given in the notice a suit will be filed against you for the recovery of the vacant possession of the said building and you will be held liable for all costs and consequences thereof. My client also puts you on notice that for your occupation which will amount to be in contempt of this notice, he will claim in the suit damages for the use and occupation at the rate of Re. 1 per square foot per month for the floor area of each of the floors in the said building.

2. Late Seetharama Rao not having surrendered possession of the premises on the expiry of the notice, that is, on 1st March, 1964, the plaintiff instituted the present suit on 2nd March, 1964 on the file of the City Civil Court, Madras, for a decree against late Seetharama Rao directing him to quit, vacate and deliver vacant possession of the suit property and to pay damages for use and occupation at the rate of Rs. 6,000 per month, from the date of the plaint till recovery of vacant possession. The plaint was a simple one and it stated that late Seetharama Rao was not using the building let to him in a proper manner and had not been maintaining, it in good condition, that he had also put up ovens without the permission of the plaintiff and that inspite of protests made by the plaintiff, he had not rectified the defects pointed out to him. The plaintiff also stated that he was in bona fide need of the premises for his own use as business premises and late Seetharama Rao was also informed about the plaintiff's need, but he had not cared to heed to his request. The plaintiff referred to Exhibit P-2 notice and stated that late Seetharama Rao having failed to deliver vacant possession of the premises the plaintiff was instituting the suit for recovery of possession of the property with damages for use and occupation from the date of plaint at the rate of Rs. 6,000 per month which, according to the plaintiff, would he less than the prevailing rents in the market for similar accommodation.

3. Late Seetharama Kao filed a written Statement dated 25th April, 1964 on 2nd May, 1964. This written statement contained practically no defence to the suit. It was denied, in the written statement that there were any defects or that late Seetharamn Rao had put up anything without the permission of the plaintiff. He also contended that the plaintiff was merely anxious to extort higher rent and for that purpose had from time to time approached late Seetharama Rao, that although late Seetharama Rao was prepared to pay a reasonable rent, he was not willing to pay anything exhorbitant and. that because of that the plaintiff had instituted the present suit on a pretence of requiring it for his own business. His further case was that there was no proper notice of termination of tenancy and the notice dated 20th January, 1964, namely, Exhibit P-2 was merely in keeping with the previous notice to the same effect which were, not intended to be acted upon and that the lease of the properly must be deemed to be a lease from year to year and accordingly no valid notice as contemplated under the Transfer of Property Act had been issued.

4. After the filing of this written statement, the State Legislature enacted an amending Act, namely. The Tamil Nadu Buildings (Lease and Rent Control) Amendment Act, 1964, (Tamil Nadu Act XI of 1964), which, was published in the Fort St. George Gazette Extraordinary dated 10th June, 1964. This Act omitted Clause (iii) of Section 30 of the Act as amended by the Tamil Nadu Act II of 1962, namely, the provision directing non-applicability of the Act to non-residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeded Rs. 400 while Section 2 of the Amendment Act XI of 1964 amended Section 30 in this behalf as well as in certain other minor respects. It contained a section as Section 3 as follows:

Every proceeding in respect of any non-residential building or part thereof pending before any Court or other authority or officer on the date of the publication of this Act in the Fort St. George Gazette and instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of Clause (iii) of Section 30 of the principal Act, shall abate in so far as the proceeding relates to such building or part. All rights and privileges which may have accrued before such date to any landlord in respect of any non-residential building or part thereof by virtue of Clause (iii) of Section 30 of the principal Act, shall cease and determine and shall not be enforceable:

Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date mentioned in this section.

In view of this amendment which, came into force on 10th June, 1964, the learned V Assistant Judge, City Civil Court, Madras, on 4th December, 1964 dismissed the suit, as having abated. Against the. dismissal of the suit as having abated, the plaintiff preferred an appeal, A.S. No. 266 of 1965 on the file of this Court. At the same time, he also filed two applications before the City Civil Court itself, namely, (1) I.A. No. 2585 of 1965 under Order 9, rule 9, Code of Civil Procedure, to set aside the order dated 4th December, 1964 dismissing the suit as abated; and (2) I.A. No. 2586 of 1965, under Section 5 of the Limitation Act to excuse the delay in filing I.A. No. 2585 of 1965. The City Civil Court, Madras (the learned V Assistant Judge) by an order dated 3rd August, 1965 allowed both the applications and set aside the earlier order dated 4th December, 1964 dismissing the suit as having abated. At that stage on 16th August, 1965 the late Seetharama Rao filed an additional, written statement dated 13th August, 1965. In that written statement he contended that subsequent to his original written statement on 2nd May, 1964, Section 30 of the Act had been amended and Section 3 of the amending Act provided that every proceeding in respect of non-residential building which was exempted under Section 30 of the principal Act shall abate, that in view of this provision the present suit (O.S. No. 730 of 1964) on the file of the City Civil Court, Madras and (C.S. No. 218 of 1965 on the file of this Court) shall abate without the written statement being altered and that since the fact of abatement arose after the written statement was filed, he could not put| forward that plea in the original written statement and therefore prayed for permission to file the additional written statement.

5. After late Seetharama Rao filed the above additional written statement, the plaintiff filed a reply statement on 16th August, 1965. In that statement while disputing the contention of late Seetharama Rao in the additional written statement, the plaintiff challenged the validity of the amending Act, namely, Tamil Nadu Act XI of 1964 on several grounds, obviously because a writ petition, W.P. No. 1124 of 1963 was pending on the file of this Court challenging its validity.

6. At the same time late Seetharama Rao filed two civil revision petitions against the orders of the City Civil Court, Madras, in the two interlocutory applications referred to above. The said two revision petitions as well as A.S. No. 266 of 1965 came to be disposed of by a Bench of this Court, to which one of us was a party, on 20th June, 1972. The contention urged in the civil revision petitions was that there was no sufficient case for excusing the delay in filing the petition to set aside the order of the City Civil Court dated 4th December, 1964 and that the City Civil Court erred in restoring the suit, as under Section 3 of the Amending Act, Tamil Nadu Act XI of 1964, the suit had abated and the City Civil Court had no jurisdiction to pass any orders. One other ground that was urged before the Bench which disposed of the appeal and the civil revision petitions and which had been noticed. by the Bench was in relation to the pecuniary jurisdiction of the City Civil Court. It was contended that the City Civil Court had pecuniary jurisdiction upto the value of Rs. 50,000 till 30th April, 1964 and therefore O.S. No. 730 of 1964 which was valued at Rs. 20,304 was properly instituted in the City Civil Court, Madras, but the pecuniary jurisdiction of the City Civil Court was restricted to suits of the value not exceeding Rs. 20,000 and the said restriction became effective from 1st May, 1964 and' that therefore the order of the City Civil Court was without jurisdiction.

7. Two events took place before the cases were disposed of by a Bench of this Court. One was that Seetharama Rao died on 15th January, 1968 and certain persons were brought on record as defendants 2 to 10, to which we shall make a detailed reference-later. The second was that after the suit-was restored to file by the City Civil Court,, Madras, on an application under Section 24 of the Code of Civil Procedure, by consent of both the parties, the suit was transferred to the original side of the High Court and it was pending as C.S. No. 218 of 1965. It was in that set-up the Bench disposed of A. S. No. 266 of 1965 and C. R. P. Nos. 2152 and 2153 of 1965. The Bench after referring to the relevant facts stated in-its order:

It is seen from the foregoing dates that at the time of the dismissal of the suit, the lower Court had no jurisdiction to deal, with the suit and in that view the counsel appearing on both sides represent that the order dismissing the suit as having abated may be set aside and the suit may be tried on the original side of this Court. We accordingly allow the appeal and* set aside the order of dismissal of the suit on the ground that, the City Civil Court had no jurisdiction to deal with the same on the date of dismissal and direct the-suit to be postal on the original side for being dealt with.

8. When the suit was pending on the file of this Court, at the instance of the plaintiff in Application No. 1897 of 1973 by. an order dated 29th August, 1973 the plaint was amended and a new paragraph was added as paragraph 9. This paragraph came to be added obviously with reference to the position of defendants 2 to 10 who were brought on record after the death of late Seetharama Rao. In this paragraph the plaintiff stated that the defendants were not tenants within the meaning of Section 2(8) of the Act and hence they were not entitled to claim any protection under the said Act; that assuming that late Seetharama Rao was a statutory tenant, his heirs or legal representatives or the trustees of his business would not be tenants within the meaning of the Act and could not claim any right or interest in the suit property; that the rights of late Seetharama Rao, if any, were not capable of being transferred to or assigned to his heirs or legal representatives or trustees of his business; that the defendants 2 to 10 were mere trespassers with no right or title to remain in the suit property; and that consequently the plaintiff was entitled to a decree for eviction against the said defendants.

9. Before we proceed further, it is necessary to draw attention to one fact. Before his death, late Seetharama Rao had executed a will on 7th January, 1968, a true copy of which has been marked as Exhibit P-3 in these proceedings. Under that will, he constituted defendants 2 to 10 as the executors of his will. In the suit property the late Seetharama Rao was running a hotel in the name of 'Modern Cafe', paragraph 14 of the will dealt with this business, while paragraph 8 of the will dealt with his property known as 'Hotel Dasaprakash' at Poonamallee High Road, Madras-7. According to paragraph 14 he was bequeathing all the movable assets including all the rights, goodwill, etc., in and around and attached to and belonging to him in the business of Modern Cafe, Esplanade, Madras, and its branch activities, with all the assets and liabilities attached thereto in favour of all his sons by his first wife and second wife equally, subject, however, that the Modern Cafe and the branches referred to in that paragraph shall also vest in the trustees appointed by him as mentioned in paragraph 8 of the will who were the same as the executors, appointed under paragraph 20 of the will, who shall administer tile same including the business thereof likewise until all his liabilities were discharged whereafter they shall vest the property in all his sons.

10. On the death of Seetharama Rao on 15th January, 1968, the plaintiff took steps for impleading his heirs as the legal representatives and he applied to the Court to implead the heirs at law of late Seetharama Rao as defendants 2 to 21. During the pendency of that application, one of the heirs namely, Smt. Ganga Bai died and plaintiff filed another application to implead her heirs also as defendants in the suit. Balakrishna Rao, one of the sons of late Seetharama Rao, who was ultimately impleaded as the third defendant, opposed those applications contending that inasmuch as late Seetharama Rao had left a will appointing executors and administrators and inasmuch as. letters of administration had already been obtained, the properly constituted legal representatives were the executors and the administrators and not the heirs of late Seetharama Rao. The Master of this Court, after considering the merits of this contention, directed the impleading of not only the executors and administrators but also all the heirs at law. To set aside that order, an application was filed by way of appeal before this Court on the original side and that came to be disposed of by Palaniswami, J., on 20th July, 1970. In this order, the learned Judge accepted the contention of third defendant Balakrishna Rao and stated:

In these circumstances, the orders of the Master directing the impleading of not only the executors and administrators but all the heirs at law is not correct. The estate is satisfactorily and effectively represented by the executors and administrators. They alone are entitled to represent the estate of the deceased, the sole defendant. The order of the Master is, therefore, modified by directing the impleading of the executors and administrators alone as defendants 2 to 10. The plaintiff shall carry out the necessary amendments in the plaint consequent on this order and file into Court a clean amended copy of the plaint and serve a copy of the same upon the executors and administrators.

It is pursuant to this order that the executors and administrators alone were) impleaded as defendants 2 to 10 and it is indisputably dear that they were impleaded only in their capacity as executors and administrators of the will of late Seetharama Rao, accepting their contention. This fact has to be taken into account in appreciating the amendment to the plaint ordered by this Court at the instance of the plaintiff, to which we have just made reference.

11. After the plaint was so amended, two written statements were filed, one by the third defendant and the other by defendants 2 and 4 to 10, who simply adopted the written statement of the third defendant. Both these written statements arc dated 23rd December, 1974 and they were filed on the same date. After practically repeating what late Seetharama Rao had stated in his written statement, in paragraph 9 of the written statement now filed by the third defendant, it was stated that the defendants came within the purview of the definition of the word 'tenant' as defined, in Section 2(8) of the Rent Control Act and hence they were entitled to claim protection under the said Act. He further stated:

The defendant stales that after the termination of the notice, the said K. Seetharama Rao became the statutory tenant and after his death his legal representatives continued as tenants and are therefore entitled to protection under the Madras Buildings (Lease and Kent Control) Act. This defendant further states that he was assisting his father in the business till his death along with his other brothers and after the death of the first defendant, this defendant along with the other brothers are continuing the business. This defendant states that the 2nd. 4th and 10th defendants were also associated with the deceased Seetharama Rao in his business prior to his death and are continuing the business after his death. The defendants therefore state that they are still the tenants as per the Madras Buildings (Lease and Rent Control) Act even after the amendment of Act XXIII of 1973.

We shall refer to this amendment Act later in the course of this judgment. The plaintiff filed a rejoinder statement on 3rd December, 1975. He demurred to the claim of the third defendant put forward in paragraph 9 of his written statement and contended in paragraph 9 of his rejoinder statement.

The defendants 2 to 10 are not entitled to the protection under the Rent Control Act. The defendants 2 to 10 are only trustees. The trust, and a fortiori the trustees, owe their existence only to the will under which the business was put in a trust. It is strange that the 3rd defendant whose capacity is only that of a trustee, should plead that in that capacity he was assisting his father in the business. None of the defendants 2 to 10 in their capacities as trustees can claim the benefit of tenant under the Rent Control Act.

12. On these pleadings the following issues were framed for trial:

(1) Is the suit maintainable?

(2) Has the plaintiff given proper notice of termination of the suit premises?

(3) Does the suit abate by reason of Act XI of 1964?

(4) Are not the defendants entitled to protection under the Madras Buildings (Lease and Rent Control) Act, 1960, as amended by Act XXIII of 1973?

(5) Whether the tenancy came to an end upon the death of K. Seetharama Rao?

(6) Whether the defendants have no legal interest in the premises and consequently liable to be rejected?

(7) To what reliefs are the parties entitled?

N. S. Ramaswami, J., by judgment and decree, dated 2nd August, 1976 decreed the suit. During the course of the trial, the contention raised in the written statement of late Seetharama Rao that the notice terminating the tenancy, dated 20th January, 1964, Exhibit P-2 was not a proper and valid one was not pursued and it was conceded that under the notice Exhibit P-2, the tenancy by holding over had been validly terminated with effect from 1st March, 1964. The learned Judge held that the Tamil Nadu Act XI of 1964 did not in any way affect the suit instituted by the plaintiff and in his view, Section 3 of the Tamil Nadu Act XI of 1964 did not apply to the suit in question and therefore it did not abate under that section. In the view of the learned Judge, Tamil Nadu Act XI of 1964 did not bring the suit building within the purview of the Act, because according to the definition in that Act, the building must be one let or to be let separately and on the date when the Act came into force, the tenancy in favour of late Seetharama Rao had been validly terminated and therefore the building was not let and it was not also a building to be' let and that the status of late Seetharama Rao was only that of a trespasser after the termination of the tenancy with effect from 1st March, 1964. The learned Judge also took the view that defendants 2 to 10, in any event, were not entitled to the protection of the Act because late Seetharama Rao, if he was a statutory tenant, after the Tamil Nadu Act XI of 1964 came into force, had only a personal right and he had no transferable or heritable right which could be claimed by defendants 2 to 10. For this purpose he relied on two decisions of the Supreme Court in Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and Ors. : [1964]4SCR892 and J. C. Chatterjee & others v. Shri Sri Krishan Tandon and Anr. : [1973]1SCR850 . He further held that the definition of the term 'tenant' in Section 2(8) of the Act will not 'take in late Seetharama Rao because the inclusive part of the definition relating to the person continuing in possession after the termination of the tenancy will cover only a case of termination of tenancy after the coming into force of the Act and in this case it? is only the Tamil Nadu Act XI of 1964, which brought the suit building within the purview of the Act by omitting the exemption under Clause (iii) of Section 30 and the termination of the tenancy having taken place before the amending Act XI of 1964 came into force late Seetharama Rao could not be a tenant as defined in Section 2(8) of the Act. The learned Judge also took the view that even if O.S. No. 730 of 1964 on the file of the City Civil Court had abated under Section 30 as amended by the Tamil Nadu Act XI of 1964, defendants 2 to 10 will not be entitled to any protection under the Act. Since if the plaintiff had filed a fresh suit for recovery of possession from them, defendants 2 to 10 could not have any answer to that suit and instead of driving the plaintiff to file a fresh suit the learned Judge could certainly treat the suit in question as a fresh suit and grant a decree for possession against defendants 2 to 10.

13. Repelling the contention of defendants 2 to 10 that after the termination of the tenancy in favour of late Seetharama Rao, he was a tenant holding over or a tenant at sufferance, the learned Judge held that the tenancy in favour of late Seetharama Rao having been validly and properly terminated with effect from 1st March, 1964 and the suit having been instituted on 2nd March, 1964 itself, the plaintiff had not assented to the continuance of possession of late Seetharama Rao in the suit building either expressly or impliedly and therefore late Seetharama Rao did not have the status of a tenant holding over or a tenant at sufferance and he was in the eye of law a trespasser and therefore was liable to be evicted and was liable to pay damages for use and occupation to the plaintiff. The learned Judge also held that defendants 2 to 10 not being tenants as defined in the Act and therefore not being entitled to the protection of the Act could not claim any right to continue in possession. On these conclusions, the learned Judge found on issue (1) that the suit was maintainable, on issue (2) that the notice to quit validly terminated the tenancy, on issue (3) that the defendants were not entitled to protection uner the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, on issue (4) that the tenancy had come to an end even on 1st March, 1964, and on issue (5) that the defendants had no legal interest in the premises. The learned Judge stated that he was not giving any finding on issue No. 3. In the result he decreed the suit for possession and damages for use and occupation, the quantum of which was to be determined under Order 20, rule 12, Code of Civil Procedure. He also stated towards the end of the judgment 'considering also the circumstances of the case and particularly the fact that a hotel is being run in the premises, I fix the time for giving vacant possession as three years from this date'.

14. Inasmuch as the learned Judge gave three years time to defendants 2 to 10 for vacating the premises in question, the plaintiff has filed O.S.A. No. 23 of 1977 contending that the learned Judge erred in giving such a long time for vacating the premises. Against the decree for recovery of possession and mesne profits passed by the learned Judge, the third defendant has preferred O.S.A. No. 75 of 1977.

15. O.S.A. No. 23 of 1977 lies within a very narrow compass and we shall refer to it towards the end of the judgment.

16. O.S.A. No. 75 of 1977 alone is the main appeal in which elaborate arguments were advanced and we shall deal with the same first. Mr. Govind Swaminathan appearing for the third defendant, who is the appellant, contended, that after the termination of the tenancy with effect from 1st March, 1964, the status of late Seetharama Rao was not that of a trespasser and he was a tenant holding over or a tenant at sufferance and that no person who had entered into possession lawfully could subsequently become a trespasser. The learned Counsel also contended that the suit instituted by the plaintiff abated as a result of Section 3 of the Tamil Nadu Act XI of 1964, and that abatement took place even during the lifetime of late Seetharama Rao. According to the learned Counsel, defendants 2 to 10 were tenants under the Act at any rate after the amendment of the Act by the Tamil Nadu Act XXIII of 1973 and as this Court had to apply the law as it was on the date when it disposed of the case, the learned Judge should have, on the definition of the term 'tenant' occurring in Section 2(8) of the Act as amended by the Tamil Nadu Act XXIII of 1973, held that defendants 2 to 10 were tenants entitled to the protection of the Act. The further contention of the learned Counsel was that the conclusion of the learned Judge that late Seetharama Rao had no interest in the suit property to transmit to his heirs or to bequeath under his will is not correct and that that is the view taken by the Supreme Court and in fact this argument really flows from the contention that late Seetharama Rao was not a trespasser, but only a tenant. As a matter of fact, the learned Judge himself points out in his judgment:

The main controversy now is whether the suit which was originally instituted in the City Civil Court had abated by virtue of Section 3 of the amending Act and if not whether the legal representatives of deceased Seetharama Rao are statutory tenants entitled to protection under the Act.

The contention of Mr. K. K. Venugopal, learned Counsel for the plaintiff, has been that on the termination of the tenancy, Seetharama Rao became a trespasser, in the eye of law, and that therefore there is no question of the suit having abated by virtue of Section 3 of the amending Act as that provision does not apply to a suit to eject a trespasser. It is also his contention that Seetharama Rao was not a statutory tenant when he died and that in any event the legal representatives, being the executors and administrators appointed by Seetharama Rao under the Will, are not statutory tenants entitled to protection under the Act. On the contrary, the contention of Mr. Govind Swaminathan, learned Counsel for the defendants, is that even though the tenancy had been validly terminated by notice to quit, Seetharama Rao was never a trespasser, that subsequent to the said notice, the plaintiff had been accepting rents from Seetharama Rao, that therefore tenancy by holding over had been created and that when the amending Act came into force Seetharama Rao became a statutory tenant and after his death, the present defendants became statutory tenants. It is further contended that Section 3 of the amending Act did apply to the suit which was then pending in the City Civil Court and that therefore it must be held that it has abated.

Arguments of the learned Counsel for the third defendant as we'll as those of the plaintiff's learned Counsel before us were on the same lines.

Under these circumstances, the points, that arise for determination in O.S.A. No. 75 of 1977 are:

(1) What was the status of late Seetharama Rao after the termination of the tenancy --whether he was a trespasser or a tenant holding over or a tenant at sufferance?

(2) Did the suit building come within the purview of the Act and did late Seetharama Rao become a tenant as defined in the Act, on the coming into force of the Tamil Nadu Act XI of 1964?

(3) Whether the suit instituted by the plaintiff abated in view of Section 3 of the Tamil Nadu Act XI of 1964?

(4) Whether the 'tenancy' came to an end upon the death of Seetharama Rao?

(5) Whether defendants 2 to 10 are entitled to protection against eviction from the suit property by virtue of the Act as amended by the Tamil Nadu Act XXIII of 1973.

Let us now take the first point, namely, what was the status of late Seetharama Rao, when the tenancy was terminated with effect from 1st March, 1964, and he continued to be in possession of the said building without surrendering possession, as demanded by the plaintiff. The learned trial Judge in his judgment stated that the main question that was argued before him was as to whether late Seetharama Rao became a trespasser on the termination of the tenancy and as a matter of fact, it was held by the learned Judge that late Seetharama Rao became a trespasser. The learned Judge further pointed out:

It was conceded on behalf of the defendants, at one stage, that if Seetharama Rao was a trespasser and no tenancy by holding over had come into existence prior to coming into force of the amending Act, the question of abatement of the suit would not arise and the plaintiff would be entitled to a decree 'for possession. However, at the last stage of the arguments, it was sought to be contended that as the definition of the word 'tenant' in Section 2(8) of the Act includes a person continuing in possession after the termination of the tenancy 'Seetharama Rao became a tenant' under the Act after the amending Act came into force.

Even, before us the argument of the learned Counsel for the third defendant was that after the termination of the tenancy late Seetharama Rao did not become a trespasser, when he continued to remain in possession of the suit property and he became a tenant by sufferance, if not a tenant by holding over. We are of the opinion that this contention is unsound and the legal position is clear that when late Seetharama Rao continued to remain in possession of the suit property after the termination of the tenancy his possession was only that of a trespasser.

17. The question came to be considered as early as 1865 in G. P. Mackintosh on behalf of Bengal Indigo Company v. Gopee Mohun Majoomdar 4 W.A. (Sutherland's) 24. In that case the appellant took a farming lease of the respondent's zamindary, the terms of which expired. The appellant-company was duly warned by the landlord that the lease would not be renewed, but notwithstanding that notice, the appellant-company sowed indigo and retained possession of the estate till the crop was ripe. The company kept the landlord out till the next year when he was put into possession by the Collector. The respondent instituted the suit claiming the value of the rice crop which would have been raised had he been allowed to re-enter on his property. The appellant contended that fee utmost it could be made liable for was the rent for the months during which it held over. The Court of first instance held that the defendant was liable as-if the land had been sown with, rice and gave a decree accordingly. The Judge on appeal agreed with the principal Sudder Ameen as to the defendant's liability, but, with regard to the extent of damages, he interfered. On appeal to the High Court, it was contended by the appellant that it had a right to cut and use the crop of indigo and that therefore it can only be held liable for the rent during the time it held over. This claim was rejected by the High Court. The High Court pointed out:

In support of the first objection it is contended that the zamindar, in giving a lease to the special appellants, did so, knowing that they only took it for the purpose of growing indigo on the lands, and that as that kind of crop would not be ripe before August or September, there was an implied permission on the part of the landlord to allow the tenant to hold over till then. To this it may be fairly answered that no implication of consent can or ought to be received where there has been every opportunity of obtaining a consent in express terms; and hi this particular case, it is in evidence that the landlord specially warned the company that their lease wodld not be renewed, and that be should re-enter on the land when the term expired. With this warning staring them in the face, the special appellants persisted in sowing indigo, knowing full well that, long before it could ripen, their occupation of the land would have ceased, and yet not making any arrangements with the landlord, or getting his permission to hold over till the indigo could be gathered. We think that, to justify such a holding over, a direct consent on the part of the landlord was required, and nothing would have been easier than for the special appellant, when the lease was taken, to have stipulated for permission to cut the crop of 1269. This ruling is, we observe, in accordance with English Law, which lays it down that, where the term of a tenant for years depends on a certainty as if he holds from certain midsummer for ten years, and in the last year he sows a crop of corn, and it is not ripe and cut before midsummer,, the end of his term, the landlords shall have it, in the absence of any special contract or custom to the contrary, for the tenant knew the expiration of his term, and therefore? it was his own folly to sow what he could never reap the profits of (Stephen's Comm., page 294, Volume I). In such a case, if the tenant held over in defiance of the landlord, as in the present instance, he would be compelled to pay, not rent for the extra time, but damages. Then, as to the standard of damages, if the special appellants had no right to hold over, their use and occupation of the land was a trespass and they arc liable not for rent as tenants, but for damages as trespassers.

The decision in Jones v. Foley (1891) 1 Q.B. 730, is a striking illustration of this principle. In that case-Day, J., Stated:

It appears that the plaintiff, who was tenant to the defendant, Lady Emily Foley,. upon the expiration of his term refused to give up possession of the premises. By such refusal, the defendant, who was desirous of pulling the cottage down and. rebuilding another house on its site, was necessarily much embarrassed. She accordingly applied to the justices for a warrant directing the constables, to give her possession. The justices issued their warrant, though its execution was in accordance with the terms of the statute necessarily, suspended for twenty-one days. But the issue of that warrant did not in any way affect the rights of the parties; it neither extended the rights of the tenant, nor limited those of the lessor. Its only effect was to entitle the defendant after the expiry of the twenty-one days to forcibly enter upon the premises, which, apart from the warrant, she could not lawfully do. The defendant, however, did not wait to avail herself of the warrant; but, on the same day that it was issued, she sent the builder to commence the work of pulling the house down. In the course of the removal of the roof, portions of the roof unavoidably fell into the bed room below and damaged some of the furniture. But that did not give the plaintiff any cause of action. The defendant was perfectly justified in doing what she did. The plaintiff had no right whatever to be in the house; he was trespasser. Any injury that happened to his furniture was not due to any unlawful act of the defendant, but was the result of his own obstinacy in unlawfully insisting upon remaining where he was, and he must put up with the consequences. The defendant did not purposely damage the goods. The removal of the roof was effected not with the object of injuring the plaintiff, but simply as a step in the demolition of the defendant's own house. It was contended, indeed, on behalf of the plaintiff, that the act of the defendant here amounted to a forcible entry, and the case of Beddal v. Maitland 17 Ch.D. 174, was relied on as an authority for the proposition that where the party who is entitled to possession enters forcibly, and in the course of the entry does damage to the property of the party who was in possession, an action will lie. The correctness of that proposition it is unnecessary here to consider, for I am clearly of opinion that what was done here did not amount to a forcible entry. It does not belong to the class of acts at which the statute's of forcible entry are aimed.

The above English decision was referred to with approval by a Bench of this Court in Om Prakash Gupta v. The Commissioner of Police, Madras and Ors. : (1960)2MLJ50 . In that case a question arose with reference in Rule 13 of the Madras Cinemas Regulation Rules, 1957. That Rule stated:

If the applicant for the licence is the owner of the site, building and equipment, he shall produce to the licensing authority the necessary records relating to his ownership and possession thereof. If he is not the owner, he shall, to the satisfaction of the licensing authority, produce documentary evidence to show that he is in lawful possession of the site, building and equipment.

The question that came to be considered by the Bench of this Court was, whether the possession of a tenant, after the termination of the tenancy, can be said to be lawful possession or not. The case decided by the Bench was an appeal from the judgment of Rajagopala Ayyangar, J., who held that on the termination of the lease the appellant could not be said to be in lawful possession of the. premises and that decision was confirmed in appeal. While doing so, the. Bench observed:

The learned Advocate-General, who appeared for the owner of the theatre, cited to us a number of decisions of English and Indian Courts in support of his contention that a tenant, on the termination of the lease in his favour, is not entitled to continue in possession and is liable to be evicted by the lessor and that he is also liable for mesne profits. Henderson v. Squire L.R. (1869) 4 Q.B. 170, a tenant remaining in possession after the end of the term is described as one in wrongful possession. In Jones v. Foley L.R. (1891) 1 Q.B. 730, a tenant on the expiration of his tenancy, was held to have no right whatever to be on the premises--'He was a trespasser'. The Privy Council ruled in Mahant Jagarnath Das v. Jhanki Singh L.R. (1922) 49. IndAp 81 : (1922) 43 M.L.J. 55 : 66 I.C. 337 : A.I.R. 1922 P.O. 142, that a lessee of zerait land is a tenant within the meaning of Section 3(3) of the Bengal Tenancy Act, 1885, only during the continuance of the term of the lease, and that, upon the expiry of the term, he became a trespasser, liable to be ejected. Such a person would be liable for mesne profits (vide Harry Kempson Gray v. Bhagu Mian . Indeed, the possession of a tenant, on the expiration of the term of the lease, becomes, wrongful and, therefore, adverse to the landlord within the meaning of Article 144 of Schedule I of the Limitation Act (vide Shravan Shahasing Patil v. Fattu 1926) 98 I.C. 911. Learned Counsel for the lessee-appellants, of course, did not challenge the correctness of any of these decisions. Their attempt was to distinguish them all on the ground that what was laid down in those cases was that the possession of a tenant after the expiry of the term of the lease was 'wrongful'.

It is quite true that such a person is liable to be ejected by due process of law. He is also liable for mesne profits. But it cannot be said that his possession was unlawful. So the argument ran.

18. It was that argument which was rejected by the Bench in Kai Khushroo Bexonjee Capadia v. Bai Jerbai Hirjibhoy Warden and Anr. , it was observed by the Federal Court.

On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not, and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession, a new tenancy comes into existence as is contemplated by Section 116, Transfer of Property Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of Section 106 of the Act.

It was further pointed out:

It can scarcely be disputed that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in dear recognition of the tenancy right asserted by the person who pays it.

Section 116 of the Transfer of Property Act ideals with tenancy by holding over and that section states:

If a lessee or under-lessee of property remains in possession, thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.

Thus, under this section, the vital requirement for a person who continues in possession of the property after the determination of the lease granted in his favour to become a tenant holding over is that the lessor or his legal representative should accept rent from the lessee or under-lessee or otherwise assent to his continuing in possession. Even the requirement as to the acceptance of the rent shall mean acceptance of the amount as rent showing an intention to recognise the tenancy right asserted by the person who pays it as pointed out by the Federal Court in the decision referred to above and the continuance in occupation of the property by the quondam tenant as a tenant.

19. In Mulla's Transfer of Property Act, 1882, VI Edition at page 769, it is stated:

The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining (a mistake for 'remains') in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression 'holding over' is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. It is submitted, in. view of the concluding words of the section, that a lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord but the relationship of landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination. of the tenancy would create a new tenancy. The Courts in England have taken a different view and according to tat view no fresh tenancy is created ...

What the section contemplates is that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessee's or sub-lessee's continuing in occupation of the property after his interest has ceased, and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.

The question came to be considered by the Supreme Court in Bhawanji Lakamshi and Ors. v. Himatlal Jamnadas Dani and Ors. : [1972]2SCR890 . In that case, after referring to the decision of the Federal Court referred to above, it was held:

The act of holding over after the expiration of the term, does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former (sic for latter) is a tenant at sufferance in English Law and the latter (sic for former) a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden , the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea, J., speaking for the majority said that the tenancy which is created by the holding over of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication, and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which founded on acceptance of rent must, be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it.

20. The question again came to be considered by the Supreme Court in Badrilal v. Municipal Corporation of Indore : [1973]3SCR15 . In that case, the Supreme Court followed its earlier decision referred to already and stated:

But a person who was lawfully in occupation does not become a trespasser, even if he does not become a tenant holding over but is a tenant by sufferance.

The appellant being merely a tenant by sufferance there is no need for any notice before he could be evicted.

21. The connotation of the expression 'lawful possession' occurring in Rule 13 of the Madras Cinemas (Regulation) Rules, 1957, came up for consideration before the Supreme Court in M. C. Chockalingam and Ors. v. Manicka Vasagam and Ors. : [1974]2SCR143 . The Supreme? Court elaborately considered this question and stated:

Mr. Gupte strenuously submits that 'lawful possession' cannot be divorced from an affirmative, positive legal, right to possess the property and since the lease had expired by efflux of time the tenant in this case had no legal right to continue in possession.

In the context of Rule 13, we are clearly of opinion that a tenant on the expiry of the lease cannot be said to continue in 'lawful possession' of the property against the wishes of the landlord if such a possession is not otherwise statutorily protected under the law against even lawful eviction through Court process, such as under the Rent Control Act. Section 6 of the Specific Relief Act does not offer such protection, hut only, as stated earlier, forbids forcible dispossession, even with the best of title.

Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the. owner having a title to the property if he can satisfy the licensing authority with regard to his possession also, will indeed be in 'lawful possession' although the word 'lawful' is not used in the first part. It is in that context that the word 'possession' is even not necessary to be qualified by 'lawful' in the first part of Rule 13. If, however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word 'lawful' therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigous possession and must' have some foundation in a legal right to possess the property which cannot he equated with a temporary right to enforce recovery of the property, in case person is wrongfully or forcibly dispossessed from it. This Cout in Lallu Yeshwant Singh v. Rao Jagdish Singh : [1968]2SCR203 , had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession.

Law in general prescribes and insists upon a specified conduct in human relationship or even otherwise, within the limits of the law, Courts strive to take note of the moral fabric of the law. In the instant case, under the terms of the lease, the property had to be handed over to the lessor. Besides under Section 108 (q) of the Transfer of Property Act, on the determination of the lease, the lessee is-bound to put the lessor into possession of the property. Since the landlord has not assented to the lessee's continuance in possession of the property, the lessee will be liable to mesne profits which can again be recovered only in terms of his wrongful' possession.

The law is stated as follows in Halsbury's Laws of England, Vol. 38, Third Edition at page 741 in paragraph 1207:

If a tenancy determines by effluxion of time or otherwise, and the former tenant remains in possession against the will of the rightful owner, the former tenant is, apart from statutory protection, a trespasser from the date of the determination of the tenancy.

The Patna High Court in Ramsunder Tewari and Anr. v. Dulhin Bayaso Kuer A.I.R. 1935 Pat. 271, stated:

If a tenant holds over after the expiry of his lease he ordinarily becomes a trespasser, unless the landlord in some manner signifies his intention of recognising the continuance of the tenancy, which in the present instance is sufficiently indicated by the fact that the suit for rent has been instituted. If the plaintiff had sued the defendant for damages on account of his wrong occupation of his land, it would have been necessary, if the defendant wished to deny that he was a trespasser, that he should indicate that the landlord had in some way or other signified his intention of the continuance of the tenancy, but that question does not arise when by the very form of his plaint the landlord recognizes the tenancy.

In Nagamony Kumaraswamy and Ors. v. S. Thiru Chhittambalam A.I.R. 1953 Trav. Co. 369, a Bench of the Travancore-Cochin High Court held:

thus at least on 21-5-1120 (M.E.), the tenancy in favour of the defendant came to an end and thereafter his possession of the property has to be treated as wrongful possession and as such he is liable to the plaintiffs for the mesne profits obtainable from the property.

As far as the facts of the present case are concerned, there is absolutely no scope for contending that late Seetharama Rao became a tenant by holding over or tenant at sufferance with effect from 1st March, 1964. The judgment of the learned Judge shows that some arguments were advanced before Turn that the plaintiff received rent from late Seetharama Rao subsequent to 1st March, 1964 and that therefore the plaintiff assented to late Seetharama Rao continuing in possession and recognised him as a tenant. The learned Judge repelled this contention by pointing out that the evidence made it clear that the plaintiff received the rent only without prejudice to his right and with clear understanding that the receipt of the amount would not operate as a waiver of the notice terminating tenancy and even the letter written by the counsel for late Seetharama Rao addressed to the plaintiff, namely, the letter dated 24th July, 1965 enclosing a cheque for Rs. 20,089.29 which was said to be arrears after deducting the corporation tax etc., paid by late Seetharama Rao made it clear that the receipt of the said amount by the plaintiff would not be treated as a waiver of the notice of termination of tenancy and the same was without prejudice to the claims of the plaintiff. However, before us Mr. Govind Swaminathan, learned Counsel for the third defendant did not repeat any such contention.

22. As we have pointed out already, the notice Exhibit P-2 terminating the tenancy by 29th February, 1964 is dated 20th January, 1964 and 1st March, 1964 being a 'Sunday, the suit for recovery of possession of the suit property was instituted on 2nd March, 1964. Thus it will be seen that there was no interval whatever between the date on which the suit was instituted, thereby excluding any scope for putting forward the contention that the plaintiff assented to the continuance of possession of late Seetharama Rao either as a tenant or otherwise. As we have pointed out already, the law is that after the termination of the, tenancy, if a teanant continues in possession of the property with the consent of the landlord, he becomes a tenant by holding over and if he continues to be in possession of the property without the consent of the landlord, he becomes a tenant at sufferance. However the position is not the same if the quondam tenant continues in possession of the property notwithstanding the express dissent of the landlord or to use the language of the Court in G. P. Mackintosh v. Gopec Mohun Mojoomdar 4 W.A. (Sutherland) 24, already referred to in defiance, of the landlord. As the Supreme Court pointed out in M. C. Chockalingam and Ors. v. V. Manickavasagam and Ors. : [1974]2SCR143 , already referred to, if a landlord has not assented to the lessee's continuance in possession of the property, the lessee would be liable to mesne profits which could again be recovered only in terms of his wrongful possession. . The fact that the plaintiff in the present case had, instituted the suit for recovery of possession from late Seetharama Rao immediately on the expiry of the lease is the clearest possible manifestation of the plaintiff's definite and determined dissent to the late Seetharama Rao continuing in possession of the property. Therefore there is absolutely no scope whatever, on the facts of this case, for holding that from 1st March, 1964, late Seetharama Rao was a tenant by holding over or a tenant at sufferance. If so, the inevitable position of late Seetharama Rao was only that of a trespasser. Relalising this position only Mr. Govind Swaminathan, learned Counsel for the third defendant, contended that once the entry into possession was lawful, in no case the subsequent possession can become unlawful and the person in possession a trespasser. According to the learned Counsel, in this case late Seetharama Rao entered into possession of the property as a tenant and continued to remain in possession of the property after the termination of the tenancy and therefore whatever else he might have been, he could not be a trespasser because in the origin his possession was lawful and in support of this contention the learned Counsel relied on the decision of the Supreme Court in Badrilal v. Municipal Corporation of Indore : [1973]3SCR15 , to which we have already made reference and a decision of a Bench of this Court in the Union of India represented by Secretary; Ministry of Works, Housing, Urban, Development, New Delhi and Anr. v. Andhra Bank Limited, Madras : AIR1976Mad387 . We are of the opinion that neither of these decisions lends support to such a contention. It cannot be contended, as a general principle of law that if the entry into possession was lawful, such possession cannot become subsequently unlawful. In our opinion even though entry into possession was lawful, the subsequent possession can become unlawful, just as unlawful entry into possession can become subsequently lawful if a person trespassers upon the property, but subsequently the owner of the property assents to his continuing in possession on condition of his paying a rent, the subsequent possession becomes, lawful. So also, when a person enters into possession of the property as a tenant, but continues to be in possession of the property even after the termination of the tenancy in defiance of the landlord, his possession becomes wrongful.

23. The observation relied on by the learned Counsel for the defendants in the decision of the Supreme Court referred to above, namely, Badrilal v. Municipal Corporation of Indore : [1973]3SCR15 , is the one we have extracted already namely:

But a person, who was lawfully in occupation does not become a trespasser, even if he does not become a tenant holding over but is a tenant by sufferance.

For this observation to apply the condition precedent is that the person must be lawfully in occupation. When a tenancy is determined and the tenant is called upon to hand over possession and the tenant who is, under an obligation continues to be in possession of the property, he cannot be said to be in lawful occupation. In the case, which the Supreme Court was dealing with, the appellant became a lessee of a land belonging to the Indore Municipal Corporation for a period of ten years, in 1919. The lease was renewed from time to time and the last of such renewals was in the year 1939 for a period of ten years. The lease expired on 30th September, 1949. On 24th May, 1949 the Municipal Corporation of Indore issued a notice to the appellant directing him to vacate the land on 30th September, 1949. Thereupon he applied to the Municipal Commissioner either to grant him a lease for 99 years and if it was not possible, to renew it at least for a period of 10 years. On 19th December, 1949 the Municipal Council passed a resolution to the effect that the land could' be given to the appellant only in case he was ready to deposit Rs. 16,212 of the lease-rent and upset price as per schedule rate in accordance with, letter No. 3239, dated 26th October, 1949 sent to him by the Municipal Commissioner and that otherwise the said land could be taken back into possession. On 31st December, 1949 the Municipal Commissioner wrote? to the appellant in terms of the-said resolution of the Municipal Council. The appellant on 9th January, 1950 wrote to the Municipal Commissioner stating that the upset price and rent claimed by the Municipal Council was too much and requesting that the rent and upset price be modified and during the pendency of his petition, the proceedings before the Commissioner be stayed.

He then filed a petition for revision before (he Minister-in-charge of Municipalities, which was dismissed, on 7th September, 1952. Almost four years later on 14th May, 1956 he wrote to the Commissioner requesting that an amount of Rs. 8,212 might be accepted and he might be permitted to pay the balance in annual instalments of Rs. 1,000 each. On 20th June, 1956 the appellant was informed by the Commissioner that he should deposit the sum of Rs. 8,212 within two days and thereafter the balance would be realised in instalments. The appellant not having paid the amount, the Municipal Commissioner again wrote on 30th July, 1956 giving him two days' time to deposit the amount of Rs. 8,212. On 20th February, 1957, the Commissioner again wrote to the appellant directing him to deposit the: whole of Rs. 16,212 within two days telling him that on his failure to do so, steps would be taken for evicting him from the land. On his failure to deposit the said amount, the suit was instituted on 16th September, 1957 for eviction. It is against the background of the facts as stated above, the Supreme Court held that the appellant was a tenant by sufferance and only in that context the above observation was made. Thus, from the above facts it will be seen that the appellant continued to remain in possession of the property after the termination of the lease, not in defiance of the Municipal Corporation, and not in the face of dissent of the Municipal Corporation, but when negotiations were being carried between the parties for the. grant of further lease in favour of the appellant. Hence we are of the opinion that the decision of the Supreme Court cannot be an authority for the proposition contended for by the learned Counsel for the third defendant.

24. The decision of this Court referred to above dealt with a different set of facts. In that case the tenancy in favour of the Union of India continued till 30th June, 1962 by which time the period of lease expired. The landlord made it known to the tenant that it was not willing to renew the lease and also put on notice the tenant of the fact that it had not expressed its desire in writing for renewal of the lease as contemplated in the original agreement of lease. The monthly rent, which was Rs. 1,150 on 1st July, 1955 was increased to Rs. 1,500 with effect from; 1st July, 1959. The Union of India, however, on 24th December, 1962 expressed its desire to continue as a tenant of the premises in question on the same terms and conditions for a further period of three years. On receipt of this communication the landlord determined the tenancy. The landlord wrote a letter to the Union of India on 29th; August, 1963 stating that if the Union of India required further lease, it was prepared to renew the lease for a further period of three years from 1st April, 1963, on an enhanced rent of Rs. 2,400 per month, at Rs. 40 per sq. ft. It' was also stated that the landlord was not in favour of continuing the lease at Rs. 1,500 per month any further The landlord also requested the Union of India to treat the matter as specially urgent and communicate its acceptance to it. Subsequently correspondence passed between the parties, the landlord reminding the Union of India that the Union of India had not replied to the demand for enhanced rent made by the landlord and stating that if rents were paid at the old rate of Rs. 1,500 it would be received only as part payment of rent and that the landlord was of the view that the Union of India was agreeable to pay the difference of Rs. 900 in rent from 1st April, 1963 onwards . Finding that no rents were paid from 1st March, 1964 to 30th September, 1964, the landlord demanded such rent at Rs. 2,400 per month and also reminded the tenant that the difference at the rate of Rs. 900 per month towards the rent for the period commencing from April, 1963 to February, 1964 was still outstanding. The landlord accordingly asked for payment of such arrears of rent. The Union of India not having paid the amount, the landlord gave final notice of demand on 11th May, 1966. However, by that time, on 18th April, 1966, the Union of India vacated the premises. In 1967 the suit was filed by the landlord claiming the difference between Rs. 2,400' and Rs. 1,500 per month, as damages for use and occupation of the premises, if not as rent for the period commencing from-1st May, 1963, on the ground that the occupation of the tenant after 30th April, 1963 was unlawful. The only question that came to be considered by this Court in the words of the Judgment itself is:

The only question argued before us by Mr. Parasaran, the learned Counsel, for the appellants, is whether the plaintiffs-respondents arc entitled as a matter of course, to rent or damages for use and occupation at the enhanced rate on the only ground that the appellants did not repudiate the claim in the normal way. There is no dispute about the quantum claimed by the plaintiffs on the basis of their stand that the defendants were bound to pay such enhanced rent on the ground that they have impliedly assented to it by not replying to it. The question, therefore is whether the appellants should automatically be made liable to pay rent or damages for use and occupation for the period in question on the only ground, that they have not expressly repudiated their liability to pay the enhanced rent.

After considering the several decisions, the Bench of this Court stated the legal position in paragraph 29 of its Judgment as follows:

Weighing the relative contentions of parties, the following principles emerge:

(1) If a tenant at sufferance continues to occupy the premises after the determination of the lease, then he cannot unjustly enrich himself by claiming that he will pay only the quondam rent: and not: a reason-able rate of damages for use and occupation of the premises.

(2) If he assents to pay the enhanced rent demanded at a time when the landlord determines the lease, then there is no difficulty at all. He will be considered as a tenant holding over on the basis of a new contract of lease as between himself and the landlord.

(3) If the tenant, in spite of the warning, contumaciously remains in possession, of the premises, the landlord secures a right to get a reasonable compensation from the tenant for such occupation but it need not necessarily be the enhanced rate of rent claimed by him; but in no circumstances. it can exceed the enhanced rate demanded by him.

(4) The Court should investigate and it has the jurisdiction to do so, and find in its discretion whether the enhanced rate claimed by the landlord, in such circumstances is penal or otherwise equitably justified.

(5) The Court has the power and indeed the discretion to fix a fair and equitable rent in such situations.

On the basis of the above legal position, the Court remitted the subject-matter to the Court below for ascertaining as to what possibly could be the fair and equitable rent or rate of damages for the period as claimed by the landlord and accepted by the Court and thereafter to grant a decree quantifying such arrears of rent or damages as the case may be.

25. In the course of the judgment, the Bench in paragraph 10 stated as follows:

In Badrilal v. Indore Municipality : [1973]3SCR15 , wherein, again Alagiriswami, J., speaking for the Bench, expressed the view that a person, who is lawfully in occupation, of the premises does not become a trespasser and if he does not become a tenant holding over, he would be a tenant by sufferance. The essential principle, therefore, appears to be that if the landlord consents to such continuance of the tenant in the premises after the determination of the lease, he would be a tenant holding over, but in the absence of any such consent, he would be deemed to be a tenant by sufferance. But in no case he can be characterised as a trespasser. In all such cases, the landlord will be entitled, to damages 'for such use and occupation, the measure of damages being the amount of the profits, which the landlord with due diligence could have received but for the wrongful continuance of the tenant in the property.

The learned Counsel Mr. Govind Swaminathan relied upon the above paragraph and in particular the sentence:

But in no case he can be characterised, as a trespasser.

26. What we have observed with regard to the decision of the Supreme Court will apply to this decision also. It is clear in this case also that the Union of India was not in. occupation of the premises in question in defiance of the landlord or in the face of the dissent from the landlord, but was in occupation, when the landlord was agreeable to allow the Union of India continuing to be a tenant of the premises on payment of higher rent, without its expressly agreeing to pay a higher rent or refusing to pay such higher rent. Apart from this, the above paragraph cannot be said to be very clear. In fact the sentence in that paragraph, (paragraph 10), namely, 'In all such cases, the landlord will be entitled to damages for such use and occupation, the measure of damages being the amount of the profits, which the landlord with due diligence could have received but for the wrongful continuance of the tenant in the property' would appear to be in conflict with the statement contained in the preceding sentences in the same paragraph. Further even in the concluding portion of the judgment, the Bench did not make a distinction between 'rent' and 'damages' and repeatedly used the expression 'rent or rate of damages'. In view of this, in our opinion, even this Bench decision of this Court does not support the proposition contended for by Mr. Govind Swaminathan.

27. Under these circumstances, we come to the definite conclusion that the status of late Seetharama Rao from 1st March, 1964 was that of a trespasser and he was liable to be ejected and was liable to pay mesne profits or damages for use and occupation to the plaintiff.

28. We shall now take up the second point. The first part of this point is, whether the suit building came within the purview of the Act on the coming into force of the amending Act, namely, Tamil Nadu Act XI of 1964. For the purpose of considering this question, it is necessary and relevant to remember the fact that all the Rent Control Legislations in this State,, whether they were in the form of orders issued under other statutes or they were in the form of independent statutes, were temporary legislations. As we have seen already, the first Rent Control Orders were promulgated in 1941 and they were renewed from time to time with regard to residential and non-residential buildings and ultimately the Legislature itself stepped in and enacted Tamil Nadu Act XV of 1946. That Act came into force on 1st October, 1946 and it was intended to remain in force for two years. However, its life was extended from time to time by issuing notifications by the State Government by virtue of the powers conferred upon it by the Act itself. The Tamil Nadu Act XV of 1946 was replaced by the Tamil Nadu Act XXV of 1949, which, as originally enacted, was to remain in force till 30th September, 1951. But by subsequent amendments its life was extended from time to time and ultimately it was replaced by the Act which came into force on 30th September, 1960 and this Act was to remain in force for a period of three years as provided for in Section 1(3) of the Act. However the words 'three years' were substituted by the words 'five years' by the Tamil Nadu Act XVI of 1963 and again the words 'five years' were substituted by the words 'ten years' by the Tamil Nadu Act XX of 1965. Again Section 1(3) of the Act was amended by the Tamil Nadu Act XXVII of 1971 so as to provide that the Act shall remain in force till 30th September, 1972 and again it was extended till 30th June, 1973 by the Tamil Nadu Act XXVII of 1972 and finally by the Tamil Nadu Act XXIII of 1973, Sub-section (3) of Section 1 of the Act was omitted and therefore the Act became permanent only from the date of the coming into force of the Tamil Nadu Act XXIII of 1973, namely 30th June, 1973.

29. Now we are concerned with the position, as it was before the Tamil Nadu Act XI of 1964. Before the Act can apply to a particular building, the building must satisfy the definition of the term as contained in Section 2(2) of the Act. Section 30 (iii) of the Act, as we have already seen, made the Act inapplicable to certain non-residential buildings. Again, as we have seen, the suit building fell within the scope of Section 30 (iii). If a particular building does not fall within the definition of the term 'building' contained in Section 2(2) of the Act, the said building will be outside the purview of the Act, independent of Section 30 (iii). On the other hand the aid of Section 30 (iii) for getting a building outside the scope of the Act is necessary only if the said building falls within the scope of the definition of that term contained in Section 2(2) of the Act. Even assuming that the suit building came within the definition of the term 'building' contained in Section 2(2) of the Act, still admittedly it was outside the scope of the Act by operation of Section 30(iii) and the co-operation was rendered ineffective only by the amending Act, namely, Tamil Nadu Act XI of 1964 which came into force on 10th June), 1964. Consequently the question for consideration is, whether the suit building was a 'building' as defined in Section 2(2) of the Act on 10th June, 1964 so as to attract the applicability of the Act. We have already seen that under the notice Exhibit P-2, the plaintiff terminated the tenancy of late Seetharama Rao by 29th February, 1964 and from 1st March, 1964 the position of late Seetharama Rao was not that of a tenant, but only that of a trespasser and on 2nd March, 1964 the present suit for recovery of possession of the suit property from late Seetharama Rao was instituted. The definition of the word 'building' in Section 2(2) states:

building means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes....

Consequently it is not every building that comes within the scope of the Act, but only a building let or to be let separately for either of the two purposes. Admittedly on 10th June, 1964, the suit building was not let because the tenancy came to an end by 29th February, 1964 and late Seetharama Rao was not occupying the building from 1st March, 1964 as a tenant, as found by us. Therefore the only other question is, whether the suit building can be said to be a building to be let separately for non-residential purposes on 10th June, 1964. We have already referred to the claim of the plaintiff in his plaint that he needed the building for his own use and the contention of late Seetharama Rao in his written statement, dated 25th April, 1964, that the plaintiff was thereby anxious to extort higher rent and for that purpose had from time to time approached him, that although he was prepared to pay a reasonable rent, he was not willing to pay anything exhorbitant and that it is because of that the plaintiff had instituted the present suit on a pretence of requiring it for his own business. With reference to the notice Exhibit P-2, late Seetharama Rao stated that that notice was merely in keeping with the previous notices to the same effect which were not intended to be acted upon. However before the trial Judge the claim of the plaintiff that he required the premises for his own need was not put in issue and no issue was framed with reference, thereto. The learned Judge himself states in his judgment:

On the relevant date, undoubtedly there was no letting of the building and it is nobody's case that the same was to be let.

The correctness of this statement found in the Judgment of the learned Judge, namely, that it was nobody's case that the building was to be let has not been challenged either in the grounds of the appeal filed before this Court or in the arguments before us. Therefore we have to proceed on the basis that it was not the case of the defendants that the plaintiff wanted to let the premises in question. This Court has construed the relevant expression, namely, 'building to be let' occurring in Section 2(2) of the Act as meaning 'building intended to be let' in R. K. Veerappa Naidu and Anr. v. N. Gopalan (1961) 1 M.L.J. 223. In the present case on 10th June, 1964 it was not the case of the defendants that the building was intended to be let and it was not also their case that at any stage thereafter the plaintiff intended to let the suit building. Therefore it follows that the suit building did not come within the purview of the Act as a result of the amending Act XI of 1964. If the suit premises did not become a building as defined in the Act, a fortiori late Seetharama Rao did not become a tenant, as defined in the Act on 10th June, 1964.

30. Independently of the above, the learned Judge has also held that in any event late Seetharama Rao did not become a tenant as defined in the Act. The definition of the term 'tenant' as defined the Act before the coming into force of the Tamil Nadu Act XI of 1964 stood as follows:

'Tenant' means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops .has been farmed out or leased by a municipal council or district board or the Corporation of Madras.

The Tamil Nadu Act XI of 1964, did not touch this definition at all, therefore this definition will apply to late Seetharama Rao, if at all, only if the Act applied to the building. On our conclusion that the Act did not apply to the said building, the question of late Seetharama Rao being a tenant as defined in the Act does not arise. Therefore we are considering this question only alternatively, namely, even assuming that the Act applied to the suit building on 10th June, 1964 by virtue of the coming into force of the Tamil Nadu Act XI of 1964, still whether late Seetharama Rao fell within the definition of the term 'tenant' as defined in the Act. Admittedly the first limb of this definition did not apply to late Seetharama Rao because by 29th February, 1964 the tenancy in his favour had been terminated and, if at all he would fall within the scope of the inclusive portion of the definition alone, namely, 'a person continuing in possession after the termination of the tenancy in his favour'. The learned trial Judge has taken the view that the termination of the tenancy contemplated in this definition must be termination after the coming into force of the Tamil Nadu Act XI of 1964 and it cannot take in a termination of the tenancy that has taken place prior to the coming into force of the said Act because such a construction will give retrospective effect to the definition. The learned trial Judge has also pointed out that analogous Acts of other States use the expression 'after the termination of the tenancy, whether before or after the commencement of this Act' and that as the definition of the Tamil Nadu Act has not used that expression, the intention of the Legislature was to take in only termination of tenancy made subsequent to the coming into force of the Act and not termination of the tenancy which had taken place before the coming into force of the Act. In the present case from 30th September, 1960 till 10th June, 1964 on which date the Tamil Nadu Act XI of 1964 came into force, the building in question was outside the purview of the Act and the termination of the tenancy had taken place during this interval and therefore the termination of tenancy in this case not being subsequent to 10th June, 1964, the inclusive portion of the definition of the term 'tenant' in Section 2(8) of the Act will not take in late Seetharama Rao. On this ground late Seetharama Rao will not be a tenant as defined in the Act.

31. For instance, the definition of the term 'tenant' as contained in Section 2(i) of the Madhya Pradesh Accommodation Control Act, 1961, reads as follows:

'tenant' means a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a subtenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act, but shall not include any person against whom any order or decree for eviction has been made.

Thus it will be seen that this definition contains the expression 'whether before or after the commencement of this Act' after the expression 'termination of his tenancy' while the Tamil Nadu Act does not contain any such expression. Therefore there is justification for holding that the relevant part of the definition of the term 'tenant' in the Tamil Nadu Act, will apply only to persons continuing in possession after the termination of the tenancy in his favour which termination takes place after the commencement of the Act, and not before the commencement of the Act, because in the absence of anything to the contrary, express or by necessary implication a law is intends to operate only prospectively,

32. In this context Mr. Govind Swaminathan brought to our notice a decision of a Bench of this Court in Moolchand Gupta and Ors. v. The Madras Piece Goods Merchants Charitable Trust by its Secretary, V.V.S. Tevanathan (1975) 88 L.W. 410, to which one of us was a party. In our opinion, in that decision this question was not considered. That case also was concerned with a non-residential building which did not fall within the purview of the Act because of Section 30(iii) of the Act. The tenancy was terminated on 31st October, 1960 and the suit in ejectment was instituted on 19th February, 1960 which ended in a compromise decree dated 31st January, 1963. The decree provided for a direction for eviction against the quondam tenant, subject to certain terms thereafter mentioned, to wit the landlord being entitled to take possession of that portion of the? premises in occupation of one Panchand and the Bullion Market post office immediately by executing the decree in so far as the said portion was concerned and the quondam tenant delivering possession of the rest of the portion in his occupation on or before 31st January, 1964, and the quondam tenant paying mesne profits at Rs. 1,340 per month for the period from 1st November, 1960 to 31st January, 1963 and further mesne profits at Rs. 800 or the other sum per month, failing which the landlord would be entitled to execute the decree immediately. Time for vacating was extended and before the building was actually vacated the Tamil Nadu Act XI of 1964 intervened. The question was, whether by virtue of the intervention of the Tamil Nadu Act XI of 1964. the decree could be executed. The learned trial Judge felt that in view of the fact that there had been a surrender of a part of the holding by the quondam tenant's sub-tenant, there was a disruption of the entire holding and therefore the quondam tenant would not be statutory tenant within the meaning of Section 2(8) of the Act. The Bench disagreed with this conclusion and held that the quondam tenant would be a tenant under Section 2(8) of the Act as he continued to remain in possession of the property even after the termination of the tenancy in his favour. No point was urged before the Court that the termination of tenancy having taken place before Tamil Nadu Act XI of 1964 came into force, the definition of the term 'tenant' in Section 2(8) did not apply to the quondam tenant in that case and therefore the said decision cannot be considered to be an authority for the point which is now raised before us.

33. Thus, late Seetharama Rao would not be entitled to the benefit of the Act by the coming into force of the Tamil Nadu Act XI of 1964 on either of the following two independent grounds:

(1) that the building itself was outside the scope of the Act; and

(2) that even if the building was within the scope of the Act, late Seetharama Rao was not a tenant as defined in the Act.

34. We may mention in this context that before, the trial Judge some argument was advanced that the plaintiff himself had recognised late Seetharama Rao as a statutory tenant, after the coming into force of the Tamil Nadu Act XI of 1964, since he had in the written statement filed in C.S. No. 191 of 1974, a suit said to be relating to a neighbouring building, which was one for an injunction against the plaintiff herein, who was the defendant in that suit, stated that late Seetharama Rao was a statutory tenant when he died. However, Mr. G. Ramaswami made it clear before us that he is not advancing any argument based upon it because whether late Seetharama Rao was a tenant under the Act or not is a question which has to be decided with reference to the provisions of the Act and not on the basis of any statement said to have been made by the parties which might have been on an erroneous conception of the legal position.

35. The answer to the third point posed by us depends upon the construction of Section 3 of the Tamil Nadu Act XI of 1964, which we have already extracted in full. The construction of Mr. Govind Swaminathan was that the present suit squarely fell within the scope of Section 3 and therefore on coming into force of the Tamil Nadu Act XI of 1964 it abated. However, Mr. G. Ramaswami refuted this contention. Though before the learned trial Judge some argument was advanced on behalf of the plaintiff that the defendants themselves proceeded on the basis that the suit did not abate under the Act, since by consent the suit was withdrawn to the High Court for trial and even in A.S. No. 266 of 1965 no contention was put forward that the suit had abated and that therefore there was no question of the order of the city civil Court dismissing- the) suit as having abated being set aside, and in fact as the order of the Bench of this Court, to which one of us was a party, dated 28th June, 1972 made in A.S. No. 266 of 1965 and C.R.P. Nos. 2152 and 2153 of 1965 referred to already showed, the counsel for the defendants also consented to the order dismissing the suit as having abated being set aside and the suit being tried on the Original Side of this Court and therefore it is not: open to the defendants to contend that the suit had abated, before us. Mr. G. Ramaswami made it clear that he is not putting forward any such contention because the question whether the suit had abated or not is a matter to be decided with reference to the language of Section 3 of the Tamil Nadu Act XI of 1964 and not on the basis of what the parties thought as to the effect of the said provision. In view of this, we proceed to consider the question- with reference to the language of Section 3 of the Tamil Nadu Act XI of 1964.

36. The contention of Mr. G. Ramaswami was that the section has no reference to a suit at all and even if it has any reference to a suit, it does not apply to a suit of the present nature and even if it applies to a suit of the present nature, still on the pleadings of the plaintiff the suit will not fall within the scope of Section 3 of Tamil Nadu Act XI of 1964. We shall now consider this three-fold submission of the learned Counsel.

37. The section itself does not use the word 'suit' and it merely refers to a proceeding before any Court or other authority or officer on the date of the publication of the Tamil Nadu Act XI of 1964 in the Fort St. George Gazette. Therefore the section in terms does not apply to a suit. The only other question is, can it be said that the section by implication refers to a suit, because the word 'Court' is used therein -- a mere reference to a proceeding pending in a Court, because in a Court proceeding other than a suit can be pending. Therefore, we have to find out the meaning of the section from the collection of the words occurring in the section, namely, before any Court or other authority or officer. Thus, the section uses three words, 'Court', 'authority' and 'officer' and from the collocation of these words, can any inference be drawn as to what is the nature of the proceeding which the section contemplates? The Act itself contemplates five different forums:

(1) An authorised officer;

(2) the Government;

(3) the Controller, popularly known as Rent Controller;

(4) The appellate authority contemplated by Section 23 of the Act; this section contemplates the Government conferring appellate powers on such officers and authorities as they think fit; and

(5) the Court, whether City Civil Court, District Court or High Court.

Consequently when the section rises all the three expressions together, can it not be that the section meant only those 'functionaries contemplated by the Act? However, if the purpose of the section is taken into account, it is clear that the expression could not have contemplated the functionaries mentioned in the Act. because in such an event, proceedings pending before those functionaries ran only be proceedings under the Act. When the very object of the Amending Act is to bring within its scope a building which was then not within the scope of the Act 'proceeding' referred to in Section 3 of the Tamil Nadu Act XI of 1964 ran only be a Proceeding other than a proceeding under the Act. Therefore, the general word 'proceeding' is capable of including a suit also.

38. However, Mr. Govind Swaminathan wanted to contend that the said section will take in a suit because the proviso to the section referred to a suit. Rut we are not able to accept this contention, because the proviso, though in 'form it is a proviso, is not really so, but an Independent provision. The normal function of a proviso is to carve something out of the main provision and deal with the ,same separately as if it constituted an exception to the main provision. In this case the main provision of Section 3 provides for abatement of pending proceedings, but the proviso deals with a suit or proceeding which has already terminated. As a matter of fact, the language of the proviso, could not apply to a pending proceeding because it purports to invalidate any suit or proceeding in which a decree or order had already been passed. At the same time if any help is to be derived from the proviso as a proviso for understanding the scope of the main provision in the section, such help can only be in the direction of drawing an inference against the contention of Mr. Govind Swaminathan because the main provision refers only to a proceeding, while the proviso uses the expression 'suit' or 'proceeding' thereby leading to the conclusion that 'proceeding' referred to in the main part of Section 3 will exclude a suit.

39. Under these circumstances, we are not able to agree with the contention of Mr. G. Ramaswami that Section 3 of Tamil Nadu Act XI of 1964 does not apply to a suit at all, because the main part of Section 3 does not use the word 'suit'.

40. However, in our opinion, the second limb of the argument of Mr. G. Ramaswami is well-founded. It is settled law that the Act itself did not prohibit the filing of a suit by a landlord for recovery of possession of the property from the tenant and the plaintiff in that suit obtaining a decree in ejectment, but only in view of the provisions of the Act such a decree cannot be executed. If that was the position of the Act in respect of buildings to which the Act applied from the inception, there was no justification whatever for the Legislature making a contrary provision in respect of non-residential buildings to which the Act is made applicable by virtue of Tamil Nadu Act XI of 1964. A Bench of this Court has elaborately considered this question and settled the legal position by holding that the Rent Control Legislation did not bar a suit for recovery of possession filed by a landlord against a tenant, in Theruvath Vittil Muhammadunny v. Melepurakkal Unniti and Anr. : (1949)1MLJ452 . In that decision the Bench consisting of Rajamannar, CJ. and Raghava Rao, J., considered the scope of Clause 8 of the Madras Non-Residential Buildings Rent Control Order, 1942. That order read as follows:

(1) A tenant in possession of a non-residential building shall not be evicted therefrom, whether in execution of a decree, or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this Clause;

(2) A landlord wishing to evict a tenant in possession shall apply to the Controller 'for a direction in that behalf.

We may point out that Section 10 of the Act is not very different from Clause 8 of the Order, in question. The Bench observed:

Before dealing with' the several decisions on the effect of this Clause, let us examine its plain language. Sub-Clause (1) lays down that a tenant shall not be evicted from a non-residential building of which he is in possession. 'Evict' literally means 'expel by legal process'. Eviction consists in the physical act of throwing out the tenant from the building which he is occupying. This sub-Clause therefore prevents the tenant from being thrown out. One of the methods of such eviction is by the process of execution of a decree for possession. The sub-Clause makes it clear that even this method is prohibited. The eviction can only be in accordance with the provisions of Clause 8. There is nothing in this Clause, or in any of the other Clauses of the Order expressly prohibiting the institution of a suit for possession, or prohibiting a civil Court from passing a decree for possession. No doubt, even though a decree for possesion is passed, it may be (sic) not be capable of execution by the civil Court. But the passing of the decree itself is not in terms prohibited.

41. Is there any such prohibition which can be necessarily implied? Is there anything in this Clause which takes away, by necessary intendment, the ordinary jurisdiction of a civil Court to entertain a suit by a landlord for recovery of possession of his property in the occupation of a tenant? After referring to the decision of the Judicial Committee of the Privy Council in Secretary of State represented by the Collector of South Arcot v. Mask and Co. , and also to certain earlier decisions of this Court on the Rent Control legislation, the Bench stated:

There are certain general considerations which, in our opinion, support this view, namely, that the order does not take away the jurisdiction of a civil Court to entertain a suit by a landlord against the tenant and pass a decree therein for possession. Many of these considerations are found set out in an unreported decision of Wads-worth, J., in Sannidhi Veeraraghavalu v. Fathima Bibi Saheba S.A. No. 80 of 1946. These are such considerations:

(1) The cause of action for an application to the Controller would be quite different from the cause of action for a suit in the civil Court; (2) The ground on which the Controller can order an eviction may be quite different from those on the strength of which the civil Court would grant a decree; (3) The 'failure by the plaintiff to claim a decree for eviction in the civil Court on grounds which would not justify eviction by the Controller might result in grave complications by way of limitation for a suit filed after the Control order ceases to operate; (4) The period during which the execution of a decree is prohibited is limited. The order itself is only for a short duration; and when it is repealed or it expires, a decree of a civil Court can be executed in the ordinary way immediately thereafter.

Having regard to all these considerations and to the language of Clause 8 of the Order, I am of opinion that the jurisdiction of a civil Court to entertain and pass a decree in a suit for eviction by a landlord against his tenant is not expressly or impliedly taken away by the provisions of the Rent Control Order.

If we may say so with respect, the above decision of this Court succinctly and clearly lays down that a suit' in a civil Court by a landlord for recovery of possession of his property from the tenant is not prohibited by the Rent Control legislation.

42. We may also mention that as pointed out already, till the Tamil Nadu Act XXIII of 1973 came into force, the Rent Control legislation in this State was only a temporary measure and therefore a landlord, taking into account the time that will be consumed in filing a suit and obtaining a decree, can file a suit for eviction and obtain a decree in ejectment with the hope of putting the decree in execution as soon as the temporary measure lapses or is repealed. The question of limitation also may arise. If the temporary measure like the Rent Control Act really intended to prohibit the filing of a suit for the duration of the measure, generally it will make a provision for the exclusion of the period during which the measure was in force for the purpose of calculating the period of limitation for filing a suit. None of the Rent Control measures in this State ever contained such a provision and in such a context, if a suit was to be barred by a temporary Rent Control measure it might happen that on the expiry or the termination of the said measure the suit for eviction might become time-barred. Further the relevant Rent Control Legislations contained a provision empowering the State Government to exempt by notification any building or class of buildings from all or any of the provisions of the Act. In view of this also, there is no need to prevent a landlord from filing a suit for eviction of the tenant and to obtain a decree in ejectment in the hope that the Government may exempt the building from the operation of the Act in which event, he can execute the decree.

The decision of this Court referred to above was rendered on 10th February, 1949. If the Government or the Legislature considered that the above decision did not correctly represent the intention of the Government or the Legislature, necessary amendments would have been made in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1949, which received the assent of the Governor-General on 10th December, 1949, and first published in the Fort St. George Gazette on 14th December, 1949. In that Act also the relevant provision continued to remain; couched in the same language, namely,

A tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this section'. Section 7(1) of Tamil Nadu Act (XXV of 1949) which language is repeated in Section 10(1) of the Act, which states:

A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 14 to 16.

The above decision of the Bench holds the field till this day and has been followed by several decisions of this Court.

43. The Supreme Court itself in B. V. Paiankar and Ors. v. G. G. Sastry : [1961]1SCR591 , took the same view. In paragraph 9 of its judgment, the Supreme Court observes:

The contention of res judicata was based on the plea taken by the respondent in his written statement, dated 11th March, 1946, where he pleaded that the civil Court had no jurisdiction to order eviction because of the House Rent Control Order, 1945, to which the reply of the appellants was that considering the nature of the suit and the consequential remedy that they were seeking the plea of jurisdiction of the Court was not open to the respondent. Thereupon the trial Court raised a new issue 'whether this Court has jurisdiction to try the suit, in view of the House Rent Control Order' which was decided against the respondent and a decree in favour of the appellants was passed on 23rd August, 1945. This judgment formed the basis of the argument before us that the plea of inexecutability of the decree could not be raised because it was barred on the principle of res judicata. The plea of res judicata is not available to the appellants as the prohibition on account of the House Rent Control Order was not against the passing of the decree but against its execution and therefore the objection to the exccutability could only be taken at the time of the execution of the decree which in the. instant case could not be done because the order for delivery by the Executing Court was passed without notice to the respondent.

(Italics is ours).

44. Thus, the position is clear that the Act itself does not prohibit a landlord from filing a suit for recovery of possession of the property from his tenant and obtaining a decree and it only bars the execution of the decree contrary to the provisions contained therein. If that be the position under the Act itself, it is hardly reasonable to hold that the amending Act XI of 1964, intended to bring about a different situation with regard to buildings which were till then outside the Act and which were being brought within the purview of the Act by the amending Act. Consequently we hold that Section 3 of the Tamil Nadu Act XI of 1964, did not apply to a suit of this nature, namely, a suit filed by the landlord 'for recovery of possession of the property from the tenant and obtaining a decree in ejectment therein, whatever may be the position with regard to its execution, which itself will depend upon whether the judgment-debtor enjoyed the protection of the Act or not.

45. In our opinion, on another ground also, it must be held that Section 3 of the Tamil Nadu Act XI of 1964, did not apply to the suit in question. Section 3 contemplated the following requirements:

(1) There must be a proceeding in respect of a non-residential building or part thereof;

(2) That proceeding must be pending before any Court or other authority or officer on the date of the publication of the said Act (Tamil Nadu Act XI of 1964) in the Fort St. George Gazette; and

(3) That proceeding should have been instituted on the ground that such building or part thereof was exempt from the provisions of, the principal Act by virtue of Clause (iii) of Section 30 of the principal Act.

Unless all these three requirements are cumulatively satisfied the section will not be attracted. In the present case the suit in question was in respect of a non-residential building and it was pending before a Court on the date when the Tamil Nadu Act XI of 1964 was published in the Fort St. George Gazette. However the question for consideration is, whether the third condition was satisfied or not, namely, whether the suit was instituted on the ground that the suit building was exempt from the provisions of the principal Act by virtue of Clause (iii) of Section 30 of the principal Act. Admittedly in the present case the plaint does not make any reference whatever to the Act much less a claim that the suit building was exempt under Clause (iii) of Section 30 of the Act. Equally in the written statement of late Seetharama Rao dated 25th April, 1964 there was no reference whatever to the Act. In view of this, it cannot be contended that the suit was one instituted on the ground that the suit building was exempt by virtue of Clause (iii) of Section 30 of the Act. However, Mr. Govind Swaminathan contended that the expression 'On the ground' occurring in the section (Section 3 of the Tamil Nadu Act XI of 1964) must be read as 'by reason of We are unable to accept this contention for the simple reason that it is not in accordance with the ordinary and natural meaning of the section. Mr. Govind Swaminathan contended that if such a construction is placed namely, that the suit to which the section applies must: be a suit instituted on the ground that the building was exempt from the provisions of the Act by virtue of Clause (iii) of Section 30 meaning thereby that the plaint must rely upon that exemption, the drafting of the plaint alone will decide the question whether the suit falls within the scope of the section or not and that could not have been the intention of the Legislature. We are unable to accept this argument either. it is the duty of the Court to give effect to the provision as it stands and therefore it cannot escape from the conclusion that the section applies only to a proceeding instituted on the ground that the building in question was exempt from the provisions of the Act by virtue of Clause (iii) of Section 30 of the Act. From one point of view, such a ground is absolutely necessary. The language of the opening part of the section is very wide. It uses the expression, 'Every proceeding in respect of any non-residential building or part thereof'. The section docs not indicate the nature of the proceeding; nor does it state as to what type of proceedings the said section will apply. The general expression extracted above may take in even suits for declaration of title with regard to non-residential buildings. Having used the widest possible words in the opening part of the section, certainly it was necessary for the Legislature to circumscribe the operation of that wide language and that circumscription has to be found in the ground on which the proceeding is instituted. Therefore the Legislature has provided for the third, requirement by way of qualifying the very wide expression constituting the first requirement. In other words, the third requirement enables one to identify the proceeding which is comprehended, by the section, as without that requirement, the section will refer to any and every proceeding in respect of any non-residential building.

So far as the section is concerned, the abatement of the proceeding is automatic and it does not require any order on the part of a Court or other authority or officer abating the proceeding. In such a context, there may be a dispute as to whether a. particular proceeding falls within the scope of the section or not. If such a controversy arises, the Court or the other authority or officer before whom the proceeding is pending will have to determine whether the suit is one which falls within the scope of the section or not. For the purpose of resolving that controversy certainly the Court or other authority or officer cannot go into the merits of the dispute between the parties, but will have to find out whether the nature of the proceeding is such as to fall within the scope of the section or not. Therefore there must be some criterion for deciding whether the proceeding falls within the scope or not, because the section itself does not indicate the nature of the proceeding to which it applies and that criterion is that the proceeding must be instituted on the ground that the non-residential building in question was exempt from the provisions of the Act by virtue of Clause (iii) of Section 30 of the Act. Hence, we are of the opinion, that for a suit to come within the scope of the section, it must be instituted on the ground that the building in question was exempt from the provisions of the Act by virtue of Clause (iii) of Section 30 of the Act and once such a ground is put forward, necessarily such a suit will pray for the relief which it could not have prayed for, if the building was not exempt from the provisions of the Act.

46. This Court as well as the Supreme Court had their own comments to make' on the language and structure of the section. In Raval and Co. v. K. G. Ramachandran and Ors. : AIR1967Mad57 , a Full Bench of this Court stated with reference to this section as follows:

It has to be immediately conceded that the wording of this section can by no means by described as happy, or 'free from any cloud of ambiguity. It is not very clear how a proceeding could have been instituted 'on the ground that such building or part was exempt from the provisions of the principal Act by virtue of Clause (iii) of Section 30', or what is the precise scope of the rights and privileges which may accrue to the landlord, and which are to cease and determine.

The Supreme Court in P. J. Gupta and Co. v. K. Vekatesan : [1975]2SCR401 , stated:

It is not necessary for the purposes of the case before us, to speculate about the type of cases which may actually fall within the two wings of the obviously unartistically drafted Section 3 of the Amending Act. It is enough for us to conclude, as we arc hound to on the language of the provision that the case before us falls outside it.

In the same judgment, the Supreme Court had considered the scope of Section 3 of the Tamil Nadu Act XI of 1964 no doubt, from the point of view of a different controversy. In paragraph 7 of the judgment the Supreme Court observed:

The obvious result of Section 30 (iii) of the Act, as it stood before? the amendment, was that, if the renewal value of a non-residential building, as entered in the property tax book of the Municipality, exceeded Rs. 400 per mensem, a description. which applies to the premises under consideration before us, the landlord would have no right to proceed against the tenant, for eviction under Section 10(2)(ii)(a) of the Act. Section 3 of the Amending Act, on the face of it, applies to two kinds of cases. Its heading is misleading in so far as it suggests that it is meant to apply only to one of these two kinds. It applies : firstly, to cases in which a proceeding has been instituted 'on the ground' that a non-residential building 'was exempt from the provisions of the Act by virtue of Clause (iii) of Section 30 of the Act and the plaint must state: so'. Though Mr. Govind Swaminathan at one stage contended that the second limb of the main part of Section 3 would also have the effect of nullifying the suit in question, he gave up that contention in question. He gave up that contention in view of the decision of the Supreme Court just referred to above holding that the section applies to two kinds of cases.

47. However, Mr. Govind Swaminathan referred to a decision of this Court in Srimathi Periathayya alias P. Muthu Meenakshi Veerakamulu Animal and Anr. v. L. Narasinga Rao (1960) 2 M.L.J. 159, decided by Veeraswami J., as , he then was, in support of his contention that a suit of the present nature abated under Section 3 of the Tamil Nadu Act XI of 1964. We arc of the opinion that the said decision has not decided any such question. That was a case where the plaintiff had instituted a suit for ejectment of a tenant and after the coming into force of the Tamil Nadu Act XT of 1964, the plaintiff applied to the Court for refund of the court-fee paid on the plaint on the ground that by reason of the amending Act XI of 1964, the suit abated and all the rights which had accrued to the plaintiff prior to the amendment became unenforceable. The trial Court took the view that there was no provision in the Tamil Nadu Court-fees and Suits Valuation Act, 1955, for refund of the court-fee under those circumstances. When the matter was taken up in revision to this Court, the learned Judge stated that the case in question is a peculiar case, that when the suit was instituted, it was properly instituted and the court-fee on the plaint was also properly paid, that by reason of Clause (iii) of Section 30 of Tamil Nadu Act XVIII of 1960 the? suit was competent, but the Tamil Nadu Act XI of 1964 enacted that the suit shall abate and that the result was the suit could no longer be continued 'for no fault of the plaintiff and that justice demanded in the circumstances that the plaintiff should not be made liable for the entirety of the court-fee. Thus, the question which, the learned Judge had to decide was whether the court-fee was refundable on the assumption that the suit abated and the learned Judge' bad no occasion to consider whether the suit abated at all and the same was not put in controversy. Under these circumstances, that decision is not of any avail to support the contention of Mr. Govind Swaminathan.

48. Hence we are clearly of the opinion that the present suit instituted by the plaintiff did not abate under Section 3 of the Tamil Nadu Act XI of 1964. It is convenient to consider the fourth and fifth points together. The question that arises for consideration is whether the tenancy came to an end upon the death of Seetharama Rao or not. Naturally this question will arise only if our conclusion that by virtue of the Tamil Nadu Act XI of 1964 the building in question did not come within the purview of the Act or that late Seetharama Rao did not become a tenant as defined in Section 2(8) of the Act is wrong. Therefore, for the purpose of consideration of this question, we are proceeding on the assumption that the Act applied to the building in question on 10th June, 1964 and late Seetharama Rao became a tenant as defined in Section 2(8) of the Act, by virtue of the operation of the Tamil Nadu Act XI of 1964. N. S. Ramaswami, J., has held that with the death of Seetharama Rao, whatever protection he had against eviction, came to an end. In other words, late Seetharama Rao became what is loosely described as a 'statutory tenant' on his death. 'Statutory' tenancy came to an end and for this purpose the learned Judge relied on two decisions of the Supreme Court, namely Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and Ors. : [1964]4SCR892 and J. C. Chatterjee and Ors. v. Shri Sri Kishan Tandon and Anr. : [1973]1SCR850

49. In Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and Ors. : [1964]4SCR892 , the Supreme Court was concerned with the provisions contained in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as amended by Ordinance III of 1959. The question there was, whether the tenant, whose tenancy had been terminated, had no right to sublet the premises. The majority held that the tenant whose tenancy was determined, but who continued in possession had no power of subletting. According to them:

A person remaining in occupation of the premises let to him after the determination of or expiry of the period of tenancy is commonly though in law not accurately, called 'a statutory tenant'. Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal; it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sub-let by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by acceptance of rent or by assent to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished and the rights of such a person remaining in possession are governed by the statute alone. Section 12(1) of the Act merely recognises his right to remain in possession so long as he pays or is ready and willing to pay the stand and rent and permitted increases and performs the other conditions of the tenancy, but not the right to enforce the terms and conditions of the original tenancy after it is determined.

A statutory tenant has no interest in the premises occupied by him, and he has no estate to assign or transfer....

In J. C. Chatterjee and Ors. v. Shri Sri Kishan Tandon and Anr. : [1973]1SCR850 , the question that came to be considered was whether the legal representatives of a statutory tenant who died pending a second appeal could be said to be tenants within the protection of the Rajasthan Premises (Control of Rent and Eviction) Act (XVII of 1950). In that case, the respondent before the Supreme Court had filed the suit for ejectment against one B. N. Chatterji on the ground that the plaintiff required the house bona fide for the residence of himself and his family. The defendant contested the suit alleging that the landlord did not require the premises bona fide. The learned District Munsif held in favour of the landlord and decreed the suit: for ejectment. The tenant filed an appeal in the Court of the District Judge, Aimer, who held that the landlord did not require the premises reasonably and bona fide and allowed the appeal and dismissed the suit. Thereupon the landlord filed a second appeal, in the Rajasthan High Court. During the pendency of the second appeal, the tenant died and his widow and children were brought on record as his heirs and legal representatives. Before the High Court it was contended on behalf of the landlord that the deceased, after the determination of the tenancy, was only 'a statutory tenant' under the Rajasthan Act XVII of 1950, and that the protection granted by Section 13 of the said Act was not available to the heirs of the tenant and therefore even if it be held that the landlord had failed to prove the reasonable and bona fide requirement, the landlord was entitled to a decree, because the legal representatives of the deceased statutory tenant were not entitled to the protection of the said Act. The High Court reversed the order of the District Court and restored the decree passed by the District Munsiff. The Supreme Court upheld the conclusion of the High Court. The Supreme Court observed:

It is now settled that after the termination of the contractual tenancy the statutory tenant has only a personal right to continue in possession till evicted in accordance with the provisions of the Act.

Thereafter a reference to the decision of the Supreme Court in Anand Niwas Private Ltd. v. Anandji Kalyanji's Pedhi and Ors. : [1964]4SCR892 , was made and after extracting a passage in that judgment the Supreme Court proceeded to state:

These observations have been made with reference to the provisions of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947. But they equally apply to the provisions of the Act with which we are concerned. The protection given to B. N. Chatterji was personal to him and if that protection is withdrawn either because there is a change in the statute or because the person who is to be personally protected is no longer living, the question arises as to what is the position of the legal representatives of the deceased statutory tenant qua the landlord in a proceeding of the nature with which we are concerned.

(10) It is obvious that the appellant landlord's right to proceed with the appeal with a view to obtain possession of his premises did survive under Order 22, Rule 4 read with rule, 11, Civil Procedure Code. Where the right to sue and prosecute the appeal survives, the appellant is bound to cause the legal representatives of the deceased respondent to be made a party and proceed with the appeal. Therefore, the heirs and legal representatives of the aforesaid B. N. Chatterji were rightly brought on record and the appeal had to proceed.

(11) Under Sub-Clause (ii) of Rule 4 of Order 22, Civil Procedure Code, any person so made a party as a legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the Court implead-ing them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title.

(12) The heirs of the tenant purported to contend that after the death of the statutory tenant, they, as next heirs, enjoyed the status of 'tenant'. For this reliance was placed on the definition of the word 'tenant' given in Section 3, Clause (vii) of the Act. According to the definition unless there is anything repugnant in the subject or context 'tenant' means the person by whom rent is, or but for a contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant or any person continuing in possession after the termination of tenancy in his favour otherwise than tinder the provisions of the Act. It was contended before us that since the rent was payable by the heirs and in fact it was paid during the pendency of the proceedings, they were tenants within the definition. In our opinion, rent was not payable by the legal representatives and if the rent was paid by them during the course of the proceedings it was not because they were recognised as tenants by the landlord but because the amount was received by him without prejudice to his rights under the orders of the Court. Indeed if the original tenant had died before the contractual tenancy had been terminated then the heirs would have inherited the tenancy and in that sense the rent would have become payable by them. But that is not the position here. When B. N. Chatterji died, he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act, and the heirs were incapable of inheriting any estate or interest in the original tenancy.

From these decisions, it is clear that what late Seetharama Rao acquired on 10th June, 1964 and had thereafter was a personal right and personal protection against eviction except according to the provisions of the Act and that personal right came to an end on his death on 15th January, 1968 and the legal representatives brought thereafter could only put forward the claim which late Seetharama Rao had. Having a right to put forward such a claim against eviction only during his lifetime, there was no defence to the suit for ejectment which defendants 2 to 10 could have put forward.

50. However, Mr. Govind Swaminathan contended that the above decisions of the Supreme Court cannot be said to be good law, in view of the subsequent judgment of the Supreme Court in Damadilal and Ors. v. Parashram and Ors. : AIR1976SC2229 . In that case, the Supreme Court was concerned with the Madhya Pradesh Accommodation Control Act (XLI of 1961). In that case, after the determination of the tenancy, the landlords had filed a suit for recovery of possession of the property from two tenants. The trial Court dismissed the suit. On appeal by the plaintiffs the first appellate Court reversed the decision of the trial Court and decreed the suit. The defendants preferred a second appeal. The two tenants died one after another and their legal representatives were brought on record. At that stage the plaintiffs made an application praying for an order that the appeal had abated as a consequence of the death of both the defendants. In that application the plaintiffs contended that the two defendants were merely statutory tenants and their right to resist ejectment on the basis of the Madhya Pradesh Accommodation Control Act was merely a personal right which was not heritable and had not devolved upon their heirs. The High Court allowed that application and ultimately allowed the appeal and set aside the decree of the lower appellate Court and restored that of the trial Court dismissing- the suit. The matter came up on further appeal to the Supreme 'Court. Before the Supreme Court reliance was placed on the two decisions, namely, Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and Ors. : [1964]4SCR892 and J.C Chatterjee and Ors. v. Shri Sri Kishan Tandon and Ors. : [1973]1SCR850 , and after referring to those decisions and stating that both of them proceeded on the basis that a tenant whose tenancy had been terminated, described as statutory tenant, had no estate or interest in the premises but only a personal right to remain in occupation, the Supreme Court referred to similar legislations in England and how the Courts in England have construed the provisions of such legislation and finally observed:

We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determiation of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation. It is not possible to claim that the 'sanctity' of contract cannot be touched by legislation. It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961, to find out whether the respondents' predecessors-in-interest retained a heritable interest in the disputed premises even after the termination of their tenancy.

51. After extracting the definition of the term, 'tenant' as contained in Section 2(i) of the Madhya Pradesh Accommodation Control Act, which we ourselves have done, while dealing with the previous point, the Court proceeded to state:

The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant retains an interest in the premises, not merely a personal right of occupation, will also appear from Section 14 which contains provisions restricting the tenant's power of subletting.

After extracting Section 14 and making certain observations with reference thereto, the Court concluded:

The concept of statutory tenancy under the English Rent Acts and under the Indian statutes like the one we are concerned with in this appeal rests on different foundations. It must therefore be held that the predecessors-in-interest of the present respondent's had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court.

52. It must be seen that this decision did not overrule the earlier two decisions of the. Supreme Court. All that the Court stated was that the question whether a person continuing in possession of the property after the termination of his contractual tenancy has no right to property but only a personal right to remain in occupation should be determined with reference to what his rights, are under the particular, statute and on the construction of the provisions contained in the Madhya Pradesh Accommodation Control Act, 1961. The Court came to the conclusion that the person continuing in possession after the termination of the tenancy in his favour under that Act did not have merely a personal right but also had a heritable interest in the premises.

53. The above decision was relied on, on 'behalf of the defendants before the learned trial Judge himself and the learned trial Judge has observed that the said decision did not overrule the earlier two decisions of the Supreme Court and the said decision was arrived at on the construction of the provisions of the particular Act, that the earlier two decisions continued to remain in force and that they constituted clear authority for the proposition that a statutory tenant had no heritable right and his rights were only personal. We are not persuaded to take a view different from the one taken by the learned trial Judge in this behalf.

54. We shall also refer to one further feature which supports the above conclusion of ours. We have already extracted the definition of the term 'tenant' as contained in Section 2(8) of the Act. That definition continued to remain in force till the same was amended by the Tamil Nadu Act XXIII of 1973 which itself came into force on 30th June, 1973. That definition clearly shows that the expression 'tenant' includes only the surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant who had been living with the tenant' in the building as a member of the tenant's family up to the death of the tenant. This will clearly indicate that the same was referable only to tenancy in respect of residential building and would have no application to tenancy in respect of non-residential building, since the expression 'living with the tenant in the building as a member of the tenant's family' is totally inapposite with reference to the tenancy of a non-residential building. It will also be clear that the definition of 'tenant' under the Act took in only certain enumerated relations or legal representatives who had been living with the tenant in the 'building as members of the tenant's family. Thus it will be seen that it takes in a surviving spouse or a son or a daughter, whether that spouse or son or daughter is a legal representative or not so long as that spouse or son or daughter had been living with the tenant in the building as a member of the tenant's family up to his death. It will also, take in such of the legal representatives of the deceased who had been living with the tenant in the building as a member of his family. In other words, the sine qua now, for such a person to become a tenant under the Act, the first requirement is that such a person should have been living with the tenant in the building as a member of the tenant's family upto the death of the tenant. Since the definition did not contemplate any person becoming a tenant after the death of the original tenant in respect of a non-residential building, the suit building being admittedly a non-residential building in which late Seetharama Rao was carrying on a hotel business when he died on 15th January, 1968, there was no other person who could come within the definition of the term 'tenant' under Section 2(8) of the Act. Therefore late Seetharama Rao's statutory tenancy came to an end with his death. Hence defendants 2 to 10, whatever their capacities and whatever their relationship with late Seetharama Rao might be, could not be termed as 'tenants' of the premises in question entitled to the protection of the Act, after the death of Seetharama Rao.

55. However, Mr. Govind Swaminathan contended that even if that be our view of Section 2(8) of the Act, still by virtue of the amendment to Section 2(8) made by the Tamil Nadu Act XXIII of 1973, defendants 2 to 10 became tenants and the law that had to be applied to a particular case was the law in force at the time of the disposal of the case and since the amendment came into force on 30th June, 1973, during the pendency of the present suit, the learned trial Judge should have, on the basis of the Act as amended, held that defendants 2 to 10 in the suit were tenants entitled to the protection of the Act. We shall now consider this contention. Section 2(8) of the Act was substituted by a new Clause by the Tamil Nadu Act XXIII of 1973 and the new Clause relevant for the purpose of the present case is as follows:

2. (8) 'tenant' means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representatives of a deceased tenant who-

(i) in the case of a residential building,, had been living with the tenant in the building as a member of the tenant's family up to the death of the tenant; and

(ii) in the case of a non-residential building, had been in continuous, association with the tenant for the purpose of carrying on the business of the tenant up to the death of the tenant and continues to carry on such business thereafter.

The following important features can be noticed with reference to this amended provisions :

(1) For the first time it makes a provision for a non-residential building.

(2) The provisions regarding a residential building are different from the provisions regarding a non-residential building.

(3) The sine qua nan for a person enumerated in the definition to become a tenant under the Act in respect of a residential building is that such person should have been living with the tenant in the building as a member of the tenant's family upto the death of the tenant. With regard to a non-residential building the sine qua non is that such, a person should have been in continuous association with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continue to carry on such business thereafter.

56. Therefore it will be seen that even with reference to a non-residential building an enumerated relation cannot be said to be a tenant, if such a person had not been in continuous association, with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continued to carry on such business thereafter and all the legal representatives will not be tenants but only such of them as had been in continuous association, with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continued to carry on such business thereafter will be tenants.

57. The argument of Mr. Govind Swaminathan is that the amended provision was in force when the learned trial Judge disposed of the suit and the suit should have been disposed of on the basis of the amended provision and that if the suit was so disposed of, defendants 2 to 10 should have been held to be entitled to the protection of the Act.

58. In this context the decision of a Bench of this Court, to which one of us was a party, in Hajee Abdulla Salt v. K. D. Moorjani (1975) 88 L.W. 559, is relevant. The building in that case was a non-residential one and did not come within the purview of the Act before it's amendment by the Tamil Nadu Act II of 1962.

On 20th February, 1961, the lease period came to an end and on 4th April, 1961, a notice by the landlord terminating the tenancy on or before 1st June, 1961 was given. The rent fixed under the lease deed was Rs. 195 per month. Since the tenant did not deliver possession the landlord instituted a suit in ejectment. On 30th November, 1961 the suit ended in an ex parte decree. In execution of the decree in February, 1962 the landlord took possession of the building on 12th February, 1962, through a bailiff. Two days later the landlord entered into an agreement with a new tenant stipulating a rent of Rs. 450 per month. On 5th May, 1962 an application, which had been filed by the tenant to set aside the ex parte decree, was dismissed. At that stage Tamil Nadu Act II of 1962 came into force on 30th June, 1962. On 29th October, 1962, a civil miscellaneous appeal filed by the fteant was allowed and the suit for eviction was restored and the landlord's civil revision petition against the order in the civil miscellaneous appeal was unsuccessful. There was an execution petition for restitution of possession. But that was held over by consent till the disposal of the suit. On 8th February, 1964 the suit was decreed and the execution petition was dismissed. On 10th June, 1964, Tamil Nadu Act I of 1964 came into force. However the decree for eviction was reversed in appeal on 8th December, 1964 and the appeal by the tenant was allowed. The result of this was that there was a direction for re-delivery. A second appeal to the High Court was filed against the appellate decree dismissing the suit. During the pendency of the second appeal, the tenant died on 3rd January, 1967. In view of this, it was contended before the High Court on behalf of (he lessor that inasmuch, as the tenancy agreement with the tenant had been brought to an end by a notice to terminate the tenancy on and from 1st June, 1961 and the suit being one in ejectment treating the tenant as a trespasser, the legal representatives of the deceased tenant were no longer entitled to any statutory protection inasmuch as such protection was but: personal to the original tenant. After extracting the definition of the term 'tenant' as it slood prior to its substitution by the Tamil Nadu Act XXIII of 1973, the Bench stated:

It seems to us that the language of the definition appears to contemplate only a residential building and it will have no application to a non-residential building so far as it matters for the present purpose. This is because the inclusive part of the definition takes in only the surviving spouse or any son or daughter or the. legal representative of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family up-to the death of the tenant. This was not a case of a residential building and there was no question of the respondents living with their father in the non-residential building.

Since the quondam tenant died in that case on 3rd January, 1967, before the Tamil Nadu Act XXIII of 1973 came into force, the Court held on the reasoning of the judgment of the Supreme Court in J. C. Chatterjee and Ors. v. Shri Sri Krishnan Tandon and Anr. : [1973]1SCR850 , already referred to, that the legal representatives could not put forward any claim over that which the deceased himself could have and that as the statutory protection available to a tenant was personal to him and it came to an end on his death his legal representatives in the circumstances could only be treated as trespassers. This decision is authority for the following propositions:

(1) The definition of the term 'tenant' contained in Section 2(8) of the Act before its substitution, by the Tamil Nadu Act XXIII of 1973 took in legal representatives only with reference to a residential building and not with reference to any non-residential building;

(2) after the death of the tenant on 3rd January, 1967, namely, before the coming into force of the Tamil Nadu Act XXIII of 1973, his legal representatives could not claim the protection of the Act on the basis of the amendment introduced by the Tamil Nadu Act XXIII of 1973; and

(3) the position of the legal representatives was only that of trespassers.

59. Notwithstanding the above position, Mr. Govind Swaminathan contended that on the authority of another judgment of this Court: in Md. Sultan Moideen and Ors. v. Official Trustee, Madras and Anr. : AIR1978Mad248 , the learned Judge should have applied the amended Section 2(8) as introduced by the Tamil Nadu Act XXIII of 1973 to the defendants 2 to 10 and we should now apply the same and hold that defendants 2 to 10 are entitled to the protection of the Act. That was a case in which under an arrangement entered into between one Mohamed Burhanuddin Sahib and the Official Trustee under Exhibits A-1 and A-2, dated 12th May, 1961 and 4th January, 1963 respectively the former obtained a right to collect rents from a market called Connemara Market in Pudupet, Madras. When the said Mohamed Burhanuddin Sahib did not perform certain obligations imposed, on him, the Official' Trustee determined the lease with effect from 31st January, 1969 and called upon Mohamed Burhanuddin Sahib to surrender possession and he having filed to do so, the Official Trustee instituted a suit for recovery of possession. The suit was decreed by the City Civil Court, Madras and against the said decree Mahamed Burhanuddin Sahib filed an appeal to the High Court. But during the pendency of the appeal, he died on 11th May, 1972 and thereupon his legal representatives were brought on record. The High Court .had to consider several questions and one of them was, whether the legal representatives were entitled to the protection of the Act. The learned Judge who disposed of the appeal did not agree with that contention and dismissed the appeal. The matter came up before a. Bench of this Court consisting of Ramaprasada Rao, J., as he then was, and Suryamurthy, J., and after referring to the definition of the term 'tenant' contained in Section 2(8) of the Act before its substitution by Tamil Nadu Act XXIII of 1973 and subsequent to its substitution by the amending Act, the Bench stated with reference to the provision prior to the amendment by the Tamil Nadu Act XXIII of 1973 a s follows:

Hence, under the old Act, there was no express reference to a non-residential building, but on a fair reading of the said definition, the benefits of statutory tenancy provided for in this sub-Clause could be availed of by the heirs and legal representatives of a deceased tenant provided they were also living with the deceased in the building as members of the tenant's family upto the death of the tenant. This requirement to get the statutory entitlement reflects the purpose of the Legislature. We are of the view that even under the old definition the legislature made it clear that unless the heir or the legal representatives, who project a claim to be continued as statutory tenant, establishes as a fact, that he or they was or were living with the deceased tenant, viz., his or their predecessor-in-interest he or they cannot obtain the statutory benefits under the provisions of Act XVIII of 1960.

After extracting the substituted definition, the Bench proceeded to state:

Due to such an amendment, the legislature, according to us again declared its intention by clarifying the position and by laying an emphasis upon such association of the heirs and legal representatives with the deceased tenant. On an examination of the two limbs of the definition of 'tenant' in Section 2(8) as amended in 1973, one gains the impression that in order to secure, continuity in the tenancy the heirs should prove, as a fact, that they were in the case of a residential building, residing with the deceased tenant as a members of his family till his death and equally prove in the case of a non-residential building, that they were in continuous association with the tenant for the purpose of carrying on the business of the tenant up to the death of the tenant and continued to carry on such business thereafter. It is therefore fairly clear that such a commercial association with the deceased tenant: in the business or non-residential activity which was carried on by the deceased tenant in the premises is an essential sine qua nan to claim the benefits under Section 2(8)(ii) of the Act. It appears to us that even after the amendment of the definition of 'tenant' in Section 2(8), the Legislature maintained its legislative intent to ensure that only heirs and legal representatives who were living with or associated with the deceased tenant in the case of residential or non-residential buildings, as the case may be can claim the benefits of continuing as statutory tenants. This primordial requirement has to be complied with and if there is no proof of nexus in the matter of living or in the matter of the continued association in the quondam, mercantile activity of the diceased tenant, then the heirs or legal representatives, in each of those cases, would not be entitled to the benefits of Act XVIII of 1960. If therefore, the halo of the above legislative intent pervaded the entire fabric of the particular legislation and if what had been achieved by the amendment is to declare and clarify such a pre-existing intent, then the question whether the amendment which is clarificatory in nature is retrospective in operation does not arise at all.

After referring to a few decisions, the Bench proceeded to state:

In those cases, the proposition is well-settled that the rights of parties have to be determined, as on the date of the disposal of the appeal by this Court, and that therefore, this Court has to take, into account the statutory provisions as amended, in deciding the rights of parties before it as on the date of disposal.

We are of the opinion that the above observations cannot be said to be an authority for the proposition that we must apply the amended definition of the term 'tenant' to defendants 2 to 10 in the present case and hold that they wore tenants entitled to the protection of the Act. With great respect, we have to point out that the above observations of the Bench with reference to the clarificatory nature of the amendment as well as the appeal being disposed of on the basis of the law as it stood so amended are purely obiter dicta, having regard to the facts of that case. In the first place, the learned Judges themselves pointed out that the legal representatives who were the appellants before the High Court were admittedly not associated with the deceased tenant nor were they in continuous association with the tenant for the purpose of carrying on the business of the tenant upto his death nor did they continue to carry on such business. If that be the factual position, the definition of the term 'tenant' as amended by the Tamil Nadu Act XXIII of 1973, would not be of any avail to them and therefore it was not necessary to decide whether the amended definition applied or not. . Secondly, the Bench, had to consider the question whether Exhibits A-1 and A-2 in that case, to which we have made reference already, were really leases at all, because the contention that was put forward on behalf of the official trustee' was that they did not constitute leases, since the right given to Mohamed Burhanuddin under those documents was merely a right to collect rents from a market. The Bench held:

The Act, in our view, could not apply, nor could it be invoked by either party as Exhibits A-1 and A-2 do not forge the legal relationship of landlord and tenant as between the official trustee and the deceased Sahib.

On that finding, there was no tenancy at all coming within the scope of the Act and therefore there was no question of Section 2(8) of the Act, whether before its amendment in 1973 or after its amendment in 1973, being applicable to that case. Thirdly, the attention of the Bench was not drawn to the decision in Hajee Abdulla Sait v. K. D. Moorjani L. 59, to which we have drawn attention already.

60. The other aspect of the question to be considered is whether defendants 2 to 10 can be said to be tenants under the Act and therefore can claim protection of the Act against eviction. We have already indicated our conclusion that late Seetharama Rao had only a personal right and not a heritable or transferable right and that conclusion was arrived at on the basis of the two definitions contained in Section 2(8) of the Act, defining the expression 'tenant' which had no reference to non-residential building in regard to legal representatives and under those circumstances the status of defendants 2 to 10 was only that of trespassers on the building'. In such a context, can it be claimed by defendants 2 to 10 that they became tenants by virtue of the substitution of Section 2(8) of the Act by the Tamil Nadu Act XXIII of 1973? On the premises referred to above, defendants 2 to 10 were trespassers on the building in question from 15th January, 1968 when Seetharama Rao died and they continued to be trespassers till 30th June, 1973 when the Tamil Nadu Act XXIII of 1973 came into force. The point to be considered is, is there anything in the Tamil Nadu Act XXIII of 1973, to clothe such trespassers with the status of 'tenant' under the Act entitled to the protection of the Act? We are clearly of the opinion that there is absolutely nothing in the Act either expressly or by necessary implication to clothe such trespassers with the status of tenant under the Act. This conclusion we reach independent of any question regarding the prospective or retrospective operation of the Tamil Nadu Act XXIII of 1973. We are further of the opinion that if any other conclusion is to be arrived at, it can be only on the basis of the Tamil Nadu Act' XXIII of 1973 amending Section 2(8) being retrospective in operation, which it is not. As we shall show shortly, even if the amendment is held to be retrospective, it will not help the defendants on the facts of this case. The Tamil Nadu Act XXIII of 1973 received the assent of the President on 29th June, 1973 and was published in the Tamil Nadu Government Gazette Extraordinary on 30th June, 1973. Section 1(2) of the said Act stated that it shall come into force on such date as the Government may by notification, appoint. The Government issued a notification under G.O. Ms. No. 1773, Home, dated 30th June, 1973 appointing 30th June, 1973 as the date on which the said Act shall come into force. Admittedly, there is absolutely nothing in the Tamil Nadu Act XXIII of 1973 to give retrospective effect to the amendment made by way of substitution of Clause (8) of Section 2 by a new Clause; nor is there any indication in the Act from which by implication any inference can be drawn that the Legislature intended the amendment to have retrospective operation.

61. In this context, the decision of the Supreme Court in Moti Ram v. Suraj Bhan and Ors. : [1960]2SCR896 , is apposite.

In that case, the Supreme Court was concerned with amendment to the Fast Punjab Urban Rent Restriction Act, 1949 made during the pendency of a proceeding. An application for eviction was made on 28th August, 1956. On that date, according to the relevant statutory provision, namely Section 13(3)(a)(iii) as it stood, a landlord can apply before the Rent Controller for an order directing the tenant to put the landlord in possession in the case of any building, if he required it for the reconstruction of that building or for its replacement by another building or for erection of other buildings. Before the tenant filed his written statement on 14th November, 1956, the said Act was amended by amending Act XXIX of 1956 on 24th September. 1956 and the amended Section 13(3)(a)(iii) was:

In the case of any building; or rented land, if he requires it to carry out any building work at the instance of the Government or Local Authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for .human habitation.

According to the Supreme Court, this amendment had substantially notified the then existing provision in Section 13(3)(a)(iii) and one of the questions the Supreme Court had to consider in the appeal was, whether the amended provision applied to the proceedings instituted prior to the amendment. Dealing with that question, the Supreme Court observed:

There is no doubt that if this amended provision applied to the present case respondent 1 would not be entitled to obtain an order of ejectment. It is plain that by the amendment the Legislature has imposed rigorous limitations on a landlord's right to recover possession in the case of any building or rented land. The question is whether this amendment can be said to be retrospective in operation. It is clear that the amendment made is not in relation to any procedure and cannot be characterised as procedural. It is in regard to a matter of substantive law since it affects the substantive rights of the landlord. It may be conceded that the Act is intended to provide relief to the tenants and in that sense is a beneficial measure and as such its provision should be liberally construed; but this principle would not be material or even relevant in deciding the question as to whether the new provision is retrospective or not. It is well-settled that where an amendment affects vested rights the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a matter of necessary implication. The amending Act obviously does not make the relevant provision retrospective in terms and we see no reason to accept the suggestion that the retrospective operation of the relevant provision can be spelt out as a matter of necessary implication.... Where the Legislature intends to make substantive provisions of law retrospective in operation it generally makes its intention clear by express provisions in that behalf. We are, therefore, satisfied that Section 13(3)(a)(iii) as amended cannot apply to proceedings which were pending either before the Controller or before the Appellate Authority at the time when the amendment was made.

In our opinion, this decision of the Supreme Court covers the point urged before us that the learned trial Judge should have disposed of the suit on the basis of the amended definition of the term 'tenant' brought about by the Tamil Nadu Act XXIII of 1973, and it is unnecessary to multiply authorities.

62. Under these circumstances, we are of the opinion that defendants 2 to 10 cannot be said to be tenants entitled to the protection of the Act against eviction.

63. We shall now consider the question on the assumption that the substituted definition of the term 'tenant' in Section 2(8) of the Act, as introduced by the Tamil Nadu Act XXIII of 1973 applies to the present case. On the basis of the amended provision, the person concerned should have been in continuous association with the tenant for the purpose of carrying on the business of the tenant and should carry on the business after his death also. In other words, there must be identity of the person who was in continuous association with the tenant and who subsequently carries on the business. We have already referred to the pleadings in this behalf, the plaintiff putting forward the contention that defendants 2 to 10 not being tenants under Section 2(8) of the Act and the third defendant stating that he was assisting his father in the business till his death along with his brothers and after the death of his father, late Seetharama Rao, he along with the other brothers were continuing the business and that defendants 4 and 10 were also associated, with late Seetharama Rao in his business prior to his death and continuing the business after his death. However, in the proceedings sought to bring on record all the heirs of late Seetharama Rao as his legal representatives the third defendant, who is the appellant before us took up a specific stand that late Seetharama Rao had left a will, that under that will defendants 2 to 10 alone are the executors and administrators. In fact, in the affidavit filed by the third defendant ho categorically stated that his father had left a will dated 7th January, 1968 under which he appointed defendants 2 to 10 as executors and administrators to manage the affairs of his estate on behalf of the beneficiaries till the liabilities were cleared and the executors and trustees mentioned in the will alone were the legal representatives and they alone had to be brought on record and that by a resolution dated 25th January, 1968 the executors and trustees had appointed him to manage the affairs of the estate and to conduct legal proceedings. Even before us Mr. G. Ramaswami raised the point that the third defendant alone who was one of the nine trustees appointed by late Seetharama Rao under his will had preferred the appeal, that all the trustees will have to function together and one trustee alone cannot file the present appeal. In reply to this, the same contention was put forward before us, namely, that the third defendant had been authorised by the other trustees to act on their behalf by a resolution of the trustees dated 14th February, 1969, pursuant to Clause (20) of the will. Hence there is no escape from the conclusion that on their own case, defendants 2 to 1.0 were brought on record as legal representatives of the deceased Seetharama Rao only in their capacity as executors and administrators under the will of late Seetharama Rao. If so, they could come into the picture only on the death of Seetharama Rao and they in that capacity could not have been associated with late Seetharama Rao in his carrying on the business during his lifetime till the date of his death. It can be further seen that out of defendants 2 to 10, the 5th defendant is H. H. Swamiji of Pajwar Mutt, residing at Pajwar Mutt, Car Street, Udipi, and 6th defendant is Sri V. T. Rangaswamy Iyengar, an Advocate of this Court, and 7th defendant is Sri S. Padmanabhan, another Advocate of this Court and by no stretch of imagination these three persons could be said to be persons in continuous association with late Seetharama Rao for the purpose of carrying-on his business upto the date of his death and they were continuing to carrying on such business subsequent to his death. The 8th defendant is one Sri H. R. Vasudeva Rao whose address has been given as 'Srinivasa Building, Kowtha Subba Rao Road, Poonandapet, Vijayawada-3'. Taking into account every one of these things, we are clearly of the opinion that defendants 2 to 10 cannot be said to be persons who were in continuous association with late Seetharama Rao in carrying on his business till his death and who continued the business after his death.

64. We may also mention one pertinent point. We have already drawn attention to the fact that paragraph 14 of the will of late Seetharama Rao dealt with his right in the Modern Cafe and under that paragraph he had bequeathed his business of Modern Cafe with all its branch activities to all his sons by the first and second wives equally. He provided that the same shall vest in the trustees appointed by him under the will, who shall administer the same including the business thereof until all his liabilities were discharged whereafter they shall vest in his sons. Therefore that Clause clearly contemplated his business of Modern Cafe vesting in the trustees from the date of his death till the liabilities were discharged and the same business vesting in his sons thereafter. From this point of view also, it cannot be said that all his sons are now carrying on the business after the death of Seetharama Rao because it is only the trustees who are carrying on the business. It is not as if all the sons of late Seetharama Rao have been appointed as trustees also. In paragraph 2 of the will late Seetharama Rao mentioned the names of .His sons. With regard to the trustees, in addition to the three persons whose names we have already drawn attention to, namely, H. H. the present Swamiji of Shri Pajwar Mutt, Sri V. T. Rangaswamy Iyengar and Sri S. Padmanabhan, Advocates of this Court, he mentions only three names of, his sons, namely Sri K. Sanjiva Rao, Sri K. Talakrishna Rao and Sri K. Narayana Rao, the other three being one Sri H. T. Vasudeva Rao his brother-in-law, one Sri P. R. Seetharama Rao and one Sri A. L. Rao. Under these circumstance's, it can never be. said that the persons who are now carrying on the business were in continuous association with late Seetharama Rao during his lifetime until his death for the purpose of carrying on his business. Hence looked at from any point of view, even on the assumption that defendants 2 to 10 can invoke the amendment made by the Tamil Nadu Act XXIII of 1973, they cannot come within the scope of the amended definition of the term 'tenant' so as to claim the protection of the Act.

65. In view of this conclusion of ours, it is unnecessary for us to consider whether the appeal preferred by the third defendant alone describing him as executor and administrator of the estate of late Seetharama Rao impleading the other administrators and executors as respondents only is competent or not, as contended by Mr. G. Ramaswami.

66. For the reasons indicated above, we are clearly of the opinion that the decree for delivery of possession of the suit property passed by the learned Judge in favour of the plaintiff is correct O.S.A. No. 75 of 1977 fails and is dismissed.

67. That leaves out the other appeal, O.S. A. No. 23 of 1.977 preferred by the plaintiff. The only grievance of the plaintiff is against the order of the learned judge giving three years' time for vacating the premises. The learned judge himself has not given any reason for granting such a long time except stating:

Considering all the circumstances of the case and particularly the fact that a hotel is being run in the premises. I fix the; time-for giving vacant possession as three years from this date.

Even in respect of a hotel, we are clearly of the opinion that a period of three years is unreasonably a long one to be granted to the judgment-debtor. However, on that ground we are not interfering with that portion of the decree of the learned Judge for the reason that the third defendant has preferred an appeal to this Court and if the learned Judge had not given this time, he would have applied for and obtained a stay of execution of the decree and by the time the appeals are now disposed of, nearly 21/2 years out of the said 3 years have expired and while dismissing the appeal preferred by third defendant, if the third defendant asks for time for vacating the premises, we ourselves would have given some time. In view of these circumstances, though the plaintiff had. a legitimate grievance against the particular direction of the learned Judge in question and was justified in filing the appeal,, we arc not interfering with that direction and on that ground O.S.A. No. 23 of 1977 will stand dismissed.

68. The plaintiff will be entitled to his costs in O.S.A. No. 75 of 1977.

69. There will be no order as to costs in O.S.A. No. 23 of 1977.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //